Knox v. Lee

Legal Dec. Tender Cases. of the case in Knox v.

Statement Lee.

Legal Tender Cases.

Knox v. Lee.

Pаrker v. Davis. of a under property loyal citizen of the States purchase A United 1. sale late rebel con- pursuant made statutes of the a confiscation rebellion, aid v. (7 in'- of their is void. Texas White federacy, passed Wallace, 700), this’point. affirmed on constitutional, when Legal known as the 2. The acts Tender (8 passage. to contracts made before their v. Griswold applied Hepburn 003), Wallace, on overruled. point They are also valid made since. applicable to contracts first, a writ of the Cir- suits; were error to two These an Texas, District of the second cuit Court for Western in iu the Judicial from decree Supreme appeal equity of Massachusetts. Court Lee, one, in was

The case the first Knox v. thus: Lee, rebellion, Mrs. citizen of the Before loyal States, resident in owned a flock Pennsylvania, United rebellion, she Texas, which, in on the outbreak sheep March, 1863, In left there in their . shepherd. charge authorities, certain which under statutes they Confederate and sold the rebellion, aid of the confiscated had in passed “ one an alien Knox pur. as the enemy,” sheep property then Confederate them at money;” apiece, chasing $10.87J a like The rebel- the third sum coin. part worth below trespass Mrs.-Lee brought lion suppressed, being and- at taking Knox damages (laid $15,000) against in bar the confiscation Knox sheep. pleaded converting which the the Confederate plea and sale by government; tried, it to be The case then on overruled. coming court consisted of that the flock 608 sheep, was proved wethers, about 140 or 150 50, bucks, 30,40, perhaps toas ewes; witnesses both and about 300 varying wethers, and of bucks, number of sheep proportion flock 1860 and 1861 was also proved ewes. It head for about ewes, head for per worth $4 per $8 Ot Cases-. Statement of ease in Knox v. Lee.

wethers, about from bead for per $20 $25 breeding bucks, witnesses all specie. testified that the sheep would March, 1863, would bring price have 1861, 1860 or. ouo witness'testified brought though sale remarked, at the one that he could party gel good if title to he the would sheep head for them. $10 give $12 "Whether he meant or Confederate was specie not tes- paper tified to.

The in use in the United States at the ordinary money time sale and purchase notes of the United being known as States, commonly “greenbacks” whose —notes issue was authorized acts and dated by Congress, February and 1862, 11th, 1862, 1863,* March 25th, 3d, and which July declared be a the said acts should tender the legal pay ment of all debts—the offered to what was plaintiffs prove the .difference value between and silver and this gold as United States known for the currency greenbacks, pur and silver had a value pose gold showing greater than and for the the purpose greenbacks, allowing jury estimate the difference between the which two, to evidence at the time it was defendant, offered, on the objected, United States was,made a currency ground legal and law, tender that there was difference in value in .no court law between two. The sustained the objection, as to evidence and excluded difference in value be tender notes of tween the Uuited specie States, and no evidence was allowed to on this go jury poiut. above,

After ruled court, on own having motion, of its said at the conclusion as follows: charge, “In will-recollectthat assessing damages, jury whatever their amount bo they may give discharged verdict.can of such amount in The Insurance covers our Company* Mauran v. case. stand. taken, is well the court need not consider If point

2. last sentence of the to the But if it

our objection charge. it taken, well our to remains. is uot Our objection objec- in view of the that facts that were be- tion this: proved what the said to the at the conclu- fore jury, judge jury his was equivalent sion of saying— charge, the value of the as to at the time of sheep “The con- proof, their value. will has been of You assess that version, specie known to it the which it premium requires and add' value much paper.” gold buy he fact, while

Thus, principle recognized green he left the claim, to infer yet jury backs discharge might the creditor at the be forced rate can upon that they This instruction was would bring gold. which they á distinction between made because, practically, wrong, a debt tenders, regard accruing coiu and paper after tender acts. v. Hepburn Griswold,† all the legal passage 8 Id. 604. Wallace, 13. † Lee. plaintiff for the in error in Knox v. Argument accrued the cause of action prior this. There does not require acts; here it of the tender accrued passage Indeed, in Hepburn to them all. v. Griswold subsequently cases meant control decision is not the court that the say arises cause of action subsequently passage where the Parties under that condition acts. to them. contract in reference things Wills, Mr. contra: in some must, cases, the rebel government Though far as a de it is too facto, say going

regarded resident, a of ban rebel property purchase, rebellion,” in aid under its laws ished 'citizens, loyal with full notice of his takes can stand. Such- purchaser is in title; Texas v. point. White* questionable counsel 2. The proceeds opposing argument lie court meant in its misapprehension charge, what a lew make it in the face of its mo would directly ruling ments That it was so is not to be before. inferred. easily The must In the interpreted reasonably. charge ruling, refused to receive evidence the court to show that green and coin had different values. had backs plaintiff* evidence of the difference between the two. offered Objec made, defendant, and the was ruled tion poiut was more natural, therefore, plaintiff. Nothing against that the court should advert to its than charging jury on one to be considered' very important point rulings —a at verdict—made the defend up making jury and to tell to recollect it. instance, ant’s That is jury did the court do. The means what just charge therefore counsel of what on the other side -It the opposite suppose. that debt, means would greenbacks discharge the evidence the worth in in considering given gold was not to add a sheep, jury premium paper. direction involves the an This question whether obligation tender laws can be dis passage arising after

* Wallace, 7 700. 461 Dec. case in Parker v. Davis. Statement that it could in court charged charged greenbacks; ' within the en been ideas not have be. This may v. but it cer Griswold, Hepburn the court in tertained bjT defendant. He cannot to the complain, favorable was tainly we -do not. is no for the in of fact there allegation That point ground misled, or the exaggerated, ap- jury damages was that the flock a short It calculation. proved pears 40, or 30, of which number consisted 608 sheep, perhaps were-bucks; wethers, and about 50, about 140 150 300 numbers, estimates, ewes. Add all these taking highest accounted 15D, and we have 500 50, 300, sheep for; valued, for and 108 to be accounted leaving according Now of the different kinds of to the different values sheep. evidence value of was direct average there fixing Besides, in in head per- specie, sheep iu is the Texas, California, coin well known business, of value in when the except contrary standard at of value from stated. depreciation sale, arising has which me event shown to title, the apprehended defect must not be arriv- have been well grounded, disregarded the value of the at that time. there- at sheep Accepting, ing fore, value, title, of their with a average good estimate at would be worth head, the 608 per sheep, $10 $6080 four and one-third interest —that years’ is, specie. Adding cent, Juue, till 1867—at rate March, 1863, per (the = we cent. have the $2026.66§, in Texas), per say 33J an amount amount than the larger $8106.66f, aggregate of, verdict complained saying nothing, according about the between the value judge, ruling difference when estimated silver and when of the sheep, gold tender notes United States. estimated trial, where no on the first Moreover, such.instruction verdict was as is here complained given, than on the second. amount greater suit, in the second Parker v. on Davis,

The case arose Davis, iu compel specific performance bill equity 462 Tender Cases.

Argument for the in in defendant error Parker v. Davis. of a contract Parker a of land to Davis lot by convey the upon of a sum of This contract payment given mouej’. was dated and the suit the brought before upon passage of the au- to, acts of referred Congress already the issue notes, them thorizing making a tender in legal “debts.” payment Supreme Court of Massachusetts in the February, (after pas- of the sage decreed court that should into acts), Dayis pay a certain sum of and that should money, thereupon Parker a execute deed himto of the land in question. In of that decree Davis court the sum pursuance into paid

named, in notes of the United known as States, “green- backs.” Parker refused to execute the deed required' by the decree, he was entitled to have upon ground the- sum into coin, court paid paymetft (cid:127) i'nt'o court of with the was greenbacks compliance order court, court. upon hearing Whereuрon that Parker decree, ordered parties, changed should execute the his contract upon pay- deed-required by ment into court Davis of a sum notes of specific United From that decree the.case was here States. brought under the well-known 25th section of the Act. Judiciary

Mr. JB. contended: Thomas, error, F. plaintiff That sum of to be 1. the consideration or paid within land, did not constitute debt conveyance as the of the acts known meaning Congress, tender laws.

2. That if a was before debt, it contracted passage them; and not affected laws, point determined in Hepburn v. Griswold.

Mr. F: Butler, contended: Benjamin contra, 1. That his contract, Parker to perform having refused there he was no debt due him' from Davis until performed execution of the deed of' the court .judgment he decree; then, and not till then, mentioned Dec. Lesal argument against constitutionality.

Mr. Potter's case a debt due Thus the a claim from Davis. had not within v. was Griswold. Hepburn has that it That the court below decided equitable his execute his

that Parker should deed performance in sum United States contract, upon given receiving- was notes; would that it that it not be doubted Treasury do to create this, that court to that is to competent say, to its- or, an Davis sub modo, upon only obligation according in a terms, which into a certain amount were, to court pay therefore, created order, the specific currency that (notes); then deter- If the so, this was specific liability. of the was court below counsel mination (the contended) within the of this to no law or review, court jurisdiction of the United States statute involved. being court, before the Mr. Nott cases thus Clarkson being case of v. Griswold,* whom the Potter, Hepburn he to the had stated court been question,† argued, gold it was that these some informed that asserted had been court, cases before involved question other to make notes a of Congress Treasury power individuals in between private discharge pre-existing and he should find debts; court, asked pase decision of. was involved any this question it, and should determine to reconsider to allow-him cases, be heard it. to upon dissent- of the court

Subsequently, majority (four-judges an made order: ing) Mr. be

“That Potter and heard these the.Attorney-General questions: cases upon following the act

“1. Is as the tender act con- known to contracts made as before its ? stitutional passage it valid to “2. Is transactions sinceits applicable passage?’' And the had on the 18th 1871. argument April, Potter, Mr. support negative: power

That no has been conferred Con- expressly * Wallace, 7 Id. † argument

Mr. against constitutionality. Potter’s the Constitution make notes of gress by Treasury between individuals private legal .tender debts, must be admitted. discharge pre-existing Can such a from the power, then, authority implied “to coin the value (cid:127)given regulate Or can it one thereof?” of the measures regarded ” “ into effect either necessary proper carry “ “ borrow to “raise commerce,” money,” regulate armies,” to support “ maintain a “provide navy,” insurrection,” to suppress other repel invasion,” ? powers delegated Congress I. This is not embracedin the authoritygiven Congress “to coinmoney.” (cid:127) is used in the

Money Constitution in two senses. Tu the second subdivision section relating powers Constitution “to Congress, speaks borrow and there the .word must be used money;” in the larger of strict monej-, sense received instead. But anything the fifth subdivision of that section, which Con- gives “ to coin the value money gress regulate thereof, coins,” and of must be evident foreign that re- ferred metallic only money. time in all immemorial,

From countries, ages the metals have world, precious been the medium of ex- and the strict value moneys. these changes, metals been them by stamp has designated their indicating is, that fineness the weight; value at indicating were rated. "When the coins coins the have possessed have indicated, value from hand they passed to hand as of have been value. found When'they that not to possess that within value, have, verynarrow except limits, failed to so . pass. at certain that,

. It is true periods history some beaver States, the skins tale; passing strings known as shells, measure; wampum, passing by .of tobacco of defined were, absence weights packages metals, as used were money, precious made the “ none But of these was medium exchanges.

Dec. against

Mr. Potter’s argument the constitutionality. tender” as or ever- had money,* but a local and anything limited circulation, or ever was used as a substitute for money, after was introduced. While-in all of world, ages mono}7 countries, in all metals, when precious stamped value, have been known as désignated moneys; (with of such representatives have been the -moneys) always great and universal medium of exchanges.

Not has meant metallic “money” money, but, upon at the of the times looking public court history (which has established as a construction of proper guide we find Constitution),† history country there was no in which was more period money” distinctly understood and meant at than period' hard when Constitution was framed and “Its framers adopted. all the an had horrors of unredeemed' just passed through “ The had been, paper currency.” history currency within the view of those who staked their on the property faith, public always freely given grossly violated.”‡ “ The mischiefs of the various that had been experiments made fresh in aud mind, had excited public general With the bills unredeemed— disgust.”§ indeed, become at last so as- hopelessly beyond redemption re entirely up worthless,|| had given country —the turned circulation to a to absolute- specie currency, value; an intrinsic and neither had nor wished money having oth'er currency. But the context as well word itself shows that the is confined to metals. This anot to' grant grant create “to money; coin simply money” —a can be exercised on that admits of coined;, only money being “ a bare is, to strike coin,” which w7asthe power phrase- in the Articles used of as the Confederation of equivalent It coin was from those Articles that the money.” coin the value thereof was transferred regulate the Constitution. that this existing provision only And

* Duvall, Kentucky, 2 Peters, 63. Briscoe v. Bank of 11 332. † p. Ib. Papers, 348. Madison 1345. ‡ § Constitution, the || Story’s Commentaries on §

YOL; XII. against constitutionality. argument Potter’s the

Mr. coin and to strike Congress power alloy gave regulate was declared at the The value, time, undisputed. 48, us Federalist, No. tells : the which is here taken from

“The right coining money, con- Confederation, left in their hands the as a States, with that of under an in favor Congress, exception right current and value. of the exclusive Congress regulate alloy right now is an on instance, also, In provision improvement this and value on the the old. Whilst alloy depended general could have in tho States particular a of coinage authority, right mints, diversify no effect than to expensive other multiply the circulating pieces.” and .iveights forms next clause of the Constitution Indeed, very (subdi- the “coun- to punish which Congress vision gives 6) and current coin of United securities of'the terfeiting coins and the. between the States,” distinguishes expressly government. obligations of' could take the however,

If, stamping or and the leather under leather, clause, paper, “as be considered coined money,” so could stamped paper even that whereof the value could regulated Congress, not provision Treasury would support With such a indeed, stamp notes. power, might, a so that should ream leather, paper, lump make that, not however, as current would circulate money; nor notes such current money. these stamped paper, no value. substance, notes have, Treasury appreciable be, of be, declared to and do not are not purport They are any as substance. value They stamped value, so far not, intrinsic value. They they possess material holds at but action. all, only things things ; but it is the the evidence of promise, promise and. be, of value. and which alone, is, which purports promise Treasurer dash of the across signature One pen is not at their and the note foot, States of the United action; not a nota matter note; thing Treasury all, at value; not ten dollars bears stamp used to once hold á worthless paper, promise, rag Dec. Legal . Cases. Tender argument against'

Mr. Potter’s constitutionality. the now If, therefore, Cancelled. “to “.money,”'in phrase coin could be as money,” other sub- considered embracing stances beside those alone in metals, use precious through- out all the world coiu, none_the as would less it remain that to utter promises to not be would or money pay “coining,” “to coin money.”

I cannot find that before of this passage legal-tender act it had ever been or supposed court, by any by any judge court, any commentator or statesman, that this “to coin had power referenc'd to but a money” anything metallic Indeed, of all the who have 'currency. judges as well given opinions, support against this, law, I find do who not concede legality hardly any to “coin awas money” to grant power relating metals. Nevertheless, coining the-precious although to coin has not sufficed to to power money support right make notes a these Treasury tender, pоwer to. the value thereof,” that of coined has is, “regulate fnoney, been taken one of the most effective to sun- arguments this law. port

If, under this to the value of coined power regulate moneys, debase it may may put upon Congress coinage; if than value; coined their intrinsic if other true moneys any it declare that one-half three-fourths of á dollar, may when it as a shall takeh dollar, to be stamped by equal thus to a whole dollar, and impair obligation n contracts and transfer man’s to one another; .why, property under the asked, it is constitutional borrow power money, and the and other delegated powers, powers necessary enable it to exercise the delegated powers, may proper n Congress not do like a better result with thing produce notes ? 'To this I these answer: Treasury cannotbe power impliedfrom, II. This regulate money. value'of no has it For, lsi. given regulate borrows, value it money money coins. The coins, claimed would foreign analogy exist if the Constitution borrow gave argument against constitutionality.

Mr. Porter’s the value But it does not regulate thereof. give. no even has to debase

And, 2d. power materially Congress is A to the coin. i’egulate power destroy. “a uniform of action X course quite involving agree an for half a to the exercise of important right without this no unsatisfac almost century, question, and. evidence that exercised.”* But rightfully tory of the of this sub a careful review on legislation show not has not the Court will ject, (as and' other which York,† New tribunals of Appeals this law have exer validity affirmed have assumed) and over currency cised subject plenary power that, laws, tender on cohtraiy, legislation legal has first to last been confined strictly of Congress and to discriminat the value of coined money, designating with reference to real value. ing the estab- review the on From Let us coinage. legislation act author- lishment passage government been three notes, the tender coin has '.Treasury izing debased, Once, Juno, 1834, and three times times only. cent, in reduced 6 was about per when gold coinage first value; three-cent were once, pieces 1851,.when^the fraction'al silver coin- coined; 1853, when the once,.in cent, some in value. But reduced 6 per pieces age as were restricted within latter these coinages and for such fractional limits, special such narrow very as debase- these laws did not uses, that, operate practically, at of the coin all. ments this the first issue of coin

From dollar, the silver the unit of time, coinage, calculation the same intrinsic remains still of the same. has remained It been have coined; first whatever value as when changes more coin into the other made, have been made bring relation to it. actual aiid júst was first considered by

When subject coinage Peter's, Kentucky, 11 Bríscoe v. Bank York, 425, 426. Dyke, v. New Metropolitan Bank Van 27 † Dec. 469 Mr. Potter’s argument against the constitutionality.

Confederation, it was to have a emit proposed of account smaller than the coinage-much dollar, and to tlie employ decimal Jefferson, while system. recommending adop tion the decimal system, of. coin suggested equal dollar, then milled existing Spanish the unit of value.

Ilis recommendation was and the dollar adopted, has ever since remained the same.*

The first was under the act of coinage April 2,1792,† that act that the should be of both provided^ 11) coinage and. .silver, that the gold relativevalue the twometals ounce, shouldbe as to one, that is, that 1 should gold fifteen be taken in value of ounces of silver. equal By that act dollars or ás units,” were (§ 9) styled, each to contain pure silver, grains weigh 371^ to the then grains standard, was, silver, according 1485 or “fine”'to (§ 13), parts pure and 179 parts alloy; “ each to be of the dollars eagles value 10 (§ 9), units,” and to contain and pure to grains gold, 270 weigh 247f to the then grains, standard which was according gold-, for 11 to 1 (§ 12) parts pure part alloy.

Both of these metals after precious were, that, as coined both became lawful and ex neces money; therefore, money, sitate, a tender in of debts due in even if payment money, so law; not declared as coals of the by just specified kind; are a lawful tender in of a contract coal, for and1 discharge aof contract cotton, But in the cotton. calling lapse the relation in value established years,' Con existing by this act of between the 1792, two gress'in precious metals, was lost. to-the increased silver, Owing produce to Increased demand the commerce perhaps world for their relative value had so gold, altered materially that, 1823, called the atten Secretary Treasury tion of to the fact that had relatively gold appreci in value, ated so that their true relation was then as 1, to 16 the evils from the erroneous standard maintained.* resulting * Ilandolph’s'Jefferson, 1, 395-6; vol. coinage, Jefferson’s on paper his Appendix to worhs. 1, Stat. 1, 16; Chap. Large, vol. at 246-9. †

470 against constitutionality. argument Mr. Potter’s F or as had advanced or declined soon gold silver to each other relative bore value really they sov as 1, relation of instead of 15 value, 16 to 1 ounco, an valued could secure who' law, every person was silver secured what our ounees.of gold coinage ounces; is, that made silver profit worth 16 intrinsically that all the followed, course, about It cent. per gold to be taken and sent out-of country as fast as coined up retained, instead, silver, recoined, and the country .that and the countries-whose those gold coinage gold coins.of bore value of and silver.'1 a true relation to gold existing from the mint' In our coin went fact, directly gold regularly and; out of some fast, as coined to the foreign packet; coined, liad it ivas been $12,000,000 computed gold in-the to he United there was whole piece hardly gold found like the tracks' Hitherto, As was said States. Congress† have all one to the lion’s den, way-r-toJEurope; gone the.coins has made its cisatlantic one ever good solitary'eagle into at the introduction evil led last to This flight.” coun the value of a coinage bill regulate gold to its true relation the rate for coin adjusting gold try, by debate silver The continuing existing coin.‡ thp at true anxious bill,§ Congress-was get shows.how to fix the coin two value of the precious-metals, relative as to the relative values of Opinions gold accordingly. age 1, to to tú16 majority 15.60' silver ranged,from understand their pursuits best of those cjnalified banks, York regarded Ne.w including subject, 1, previous as to to although ratio be 15.62 true few at the in But 15.80 it had averaged Congress, years to.1.' to adopt of metallic nio-ney, the friends determined stance of seemed, to value; because that relative as the partly to 1 16 most had the' correct practically ratio which proved be it; because the which had adopted partly nations in the * Debates, Feb., 1823, p. 6th Congressional 859. . 1834, †. Ib., June, p. 4654 1834, 4 95; Large, p. Stat. at 699. Chap. Daws ‡ Debate's, 1, 2 June 1834. Congressional § Dec. Legar

Mr. Potter’s argument against the constitutionality. variation from the was, true relation if so small it any, might safely because was disregarded;' partly believed relative of which had been appreciation so gold long on-would continue, arid that the over-valuation going slight it, of if there was, would thus in time corrected.* that act was By reduced from (§ 1) eagle grains 247§ pure gold, 9 of the said act of to required by 1792, § cent, pure or about six in grains intrinsic gold, per value. so far But, Congress assuming any power materially of creditors, the impair coinage rights depreciate to make coin a Congress depreciated in, disclaimed And the expressly states debate.† man at whose instance, whose this bill was will, ever, carried was, mainly men who had through part in the the last to be on government of country, quoted the side of Legal

472 Tender Oases. argument against constitutionality. Potter’s

Mr. old True,-he could before. could take of the gold $940 with it of the new, coinage, get gold $1000 which to his he could law, debt. But before the so, pay take this same coinage, purchase $940 $1000 gold then, still, silver to with which equivalent coinage, the debt. law, so far pay from Indeed, taking T'5 debt from the creditor and it to the' at first debtor, as giving the debtor no new appears, and de actually gave privilege, the creditor of no prived It remained property. optional with the after law as before, to pay gold debtor,_ True, old it became pieces after coinage. possible, law, the debtor to in the new but pay gold coinage; had been him-before-the law to optional-with pay constant'- silver in value to new coinage equivalent gold inwas,' fact, coinage. an,adjustment The.law recog relation, nition of the true between values of the two (cid:127)metals, the selection of which had always optional remained and, far from so an debtors, being attempt by Congress without money reference regulate differing value, it on the was, intrinsic a most careful and contrary, 'earnest effort value of its bring recognizable its intrinsic more value.* closely this-act of June'28, 1834, an

Following passed the same value act on at which day, conforming foreign, were to be rated to their true coins intrinsic value.† the standard In of both Congress fixed 1837,‡ gold fine; that is coin at 9 parts metal tol of pure silver T90ths of the dollar change weight was re By alloy. gross- but the duced grains (§ 9), correspond fineness 4I2J and the dollar increased, therefore continued to contain ingly = 371 pure silver,-as 4121- o.f grains provided for fa T95ths the first coined, dollar when to remain therefore of the (/ross value as intrinsic before. And .the same weight somewhat, same act, was, by increased, but it eagle eon Debates, June, Congressional 1834, pp. 4643-4671. 96, at Large, 4 Stat. Chap. † 136-7, 3, Large, Chap. p. 5 Stat. at 8.§ ‡ Dec.

Mr. argument against constitutionality. Potter’s contain, tinued to however pure (§ 10), grains gold, the act of 1834. provided by This in the of the silver has change gross weight coinage it was debased, the idea then in- led corresponding crease in its fineness been overlooked. having

Let us refer to later in the silver For changes coinage? 1834, after of these laws of nearly twenty years passage between the metals remained undis precious relations that no action turbed, so was But required. discoveries the unlooked-for of disturbed California gold and in a reverse the relation direction, between again, metals, and thereafter silver advanced and de two gold values; in relative that, clined -.so silver attained a 1863, over marked coined since the act premium gold 183,4, and a in silver coin had been felt. scarcity how Congress, did not ever, coin thereupon the silver generally depreciate It was, indeed, age. urged upon Congress appreciate Instead, however, this, think gold coinage.* doing that this harvest was to du probably, short ing, gold and its disturbance of ration, so relation, then sub long betwmen continue; the two metals, sisting likely to meet evil small notes issued kind striving by every and of tokens for corporation then paper change, pressiug did the silver depreciate coin,for dollars —Congress parts of cent, about 6 two only, half-dollars or four per (so are no to one dollar quarter-dollars longer equal piece). from, these coins were But restricted depreciated being legal sum than all, any greater $5 although coin of the earlier smaller silver .remained a tender coinage amount. Prior to this, had 1861, directed the coinage a three-cent fineness and pieces weight gave a'value of cents them 80 on the only nominal dollar these e., 33 of three-cent were pieces pieces (i. worth in- coinage of one silver trinsically only but these dollar); pieces’ made tender to the extent of 30 cents in the ag- Tribune, journals. New Turk Vide other Tender Cases. Mr. argument against constitutionality. Potter’s issue, and was their limited shortly- gregate, very value was the act-of 1853 their intrinsic stopped, raised to the of that of the other fractions standard dollar.* also,

Then as copper coinage. Congress, change value 1796, reduced the.intrinsic weight increased value of the. cent accord with the copper, cents, These had to for which planchets import.† tender. however,werenot made legal cred-

The interference rights'of by government'with have, therefore, been : of the coin itors by regulations and doubt- 1834, disputed the acts possible, 1. By cent, than 1 per if of less anything, ful depreciation, of fractional silver 1851, the act of depreciation 2. By not, extent which could to an coin three.-cent (the piece) altered, cents; however, exceed tender, 6 shortly, largest in the 2 cents. that it could not exceed so aggregate silver of fractional 1853, act of depreciation 3. By in the to an extent not. exceed largest which.could coinage cents. tender 30 be deemed of fractional coin if these debasements

Now, minute and from their ; nevertheless, such fractional merely future, no material nature, would form precedent they indicate acquiescence by of the. debasements coinage, the courts an assumption by Congress people value its coiued a false or upon arbitrary put right yon . curat lex. JDeminimis money. ' were and 1853 practically these acts indeed, But, de- creditors or rights at infringements not As re- already below value. of the coinage basements awith value when were struck coins marked 464), (page within have, except did not they very which possess, they intrin- true at more than'their limits,” failed pass narrow coins, some- are limits within which there But sic'worth. true will circulate as value, their below what depreciated Guide, Large, p. 591; 14, 15; 9 pp. Dealers' Edelmnn’s Bullion Stat. at 10Id. 160. p. 1823, Debates, February, p. 8Ó4 Mint, Congressional Report as to the † Cases, Dec. constitutionality. argument against

Mr.jPotter’s Those are been limits had not depreciated. well as if they so small that difference between when the payment leave it values, does not worth 'he intrinsic nominal and or when some difference, while to particular'con- regard such as its denomina- coin, venience about portability is; the intrinsic overbaUmces tion, depreciation; will, in for the fractional fitness purpose required, peculiar make cases, such actually good depreciation, carry for all of use, the small coin, purposes up stamped value.

All will often, recollect how days Spanish instead, we 12 cents and took cents, piece accepted 12J with drilled holes them Spanish quarters equally through Those who have been know coin. perfect England that a has so wear depreciated by sovereign large of the coins in circulation in Great Britain are in- majority 2(L less than standard sov- worth value— trinsically per it is said—and for all minor payments, they ereign yet, pass from hand as of full while to hand tale equally weight; transactions out they always paid large weight three-cent tale. So.w4tn depreciated pieces which, 1851; within limit at narrow tbe'very they tender, their and conveniencemade what portability up wanted intrinsic silver value. so, And with the . It depreciated- coinage too> confined,

was to fractions of a dollar, were so slightly and the such, eonveniencé of ^hich depreciated, intrinsic loss Was not to be trifling But the regarded. coins made a tender twice the depreciated legal ouly.to of the lowhst amount still tenderable.gold coin, Congress its idea of a double and standard, still keeping money its value, unit of the silver dollar. holding unchanged Now it is submitted that all these exercises of the powers “ to coin the value thereof” Congress money regulate were within the letter and Con- spirit Constitution. has, indeed, established value of certain gress foreign at time coins one another; it at made them a changed tender,'and them of that deprived quality; changed [Sup. Ct. argument against

Mr. Potter's the constitutionality. from time to time the standard value coin struck at its mint. But how has done it this? Without regard intrinsic value of the coin struck? it By fixing upon any it a valúe, tendér at arbitrary its making but anything value, true as all the courts which have con- supported'the we are have stitutionality provision as- considering all; but, sumed? at on the contrary, by Not uniformJy to conform the its coin to its true seeking stamp value, upon by from intrinsic scrupulously limiting departures value for within so limits narrow special that the purposes of the coin special within those limits has actually usefulness made good trifling-deficiency weight.

In same has spirit, that its coin Coiigress provided . a shall be tender at its valuation when stamped only legal

of full if of ac- weight; light weight,-only proportionately, to its weight. cording fine, under to coin

In Congress, regu value has done thereof, exactly late the what those only in their has words struck metallic plain signification imply; and has the value coins, thereof and regulated of foreign done on coins; and has with occasion careful re every value; intrinsic to their true as well gard manifesting aud narrow limits within which particular purposes they value, from intrinsic their have departed strict general not their values, for such belief that could they strike regard metal and an but stamp arbitrary value, - -the value of could regulate they rightfully money only by the value Not that truly declaring possess thereof. they their give, omnipotent fiat, precious magic and valueless inanimate value to things,” possessed the coin stamped, regulate by declaring value value according according fact — it when of full and of stamped weight, only propor value when of tionate light weight. have

In been various opinions given has cases, seemed to so far toward nothing go sup to make notes a authority porting treasury tender as the had been left assumption Dee. 477 Legal Tender Cases. argument

Mr. Potter’s against constitutionality. the Constitution at liberty impair private rights contracts of by debasing specie obligation coinage, and that it had debased that actually impaired coinage to the extent of or chal those without rights question yg, Had this been the actiou of would not it lenge. Congress, have One indeed established its to do this. power right dp an invasion of established does not away right permitted That had debased the right. coinage it; would not establish the to further debase right j’jtli ex most, at indicate that the would, power regulate itself, to that furnish no limit, would, tended.up jus Neverthe for a more or further tification invasion. general in all the that had assertion, less, opinions, government the extent of assumed debase impair coinage T’gth, that this creditors, all to that recovery ing degree has seemed without had been submitted to question, action for the to me the power strongest argument ..Indeed,- it over coined control to exercise plenary money. creditors as to how it was was possible inquiry through so serious an of their have submitted to could infringement in the courts that I learned that in without contest rights the kind took fact really place.* nothing far from we see so that, Congress having On contrary, tender,” and exercised unlimited over claimed legal assumed the make even coin far from so having value, as tender, without to its real intrinsic regard this law assume, legislation all decisions'supporting its. case, Notwithstanding so have been the true facts' little understood, journal, excellent that‘we find an article rightly 19, February, p. still 91), Register, (vol. as late 1871 Law American Griswold, and other de Hepburn of a review of v. course asserting Wallace, court, and 8th reported tender cases 7th this cisions a less value greater make dollars of a Congress to cent., instances; 1834, per and that “in in various exercised had been dollar, gold and the holders and value of weight from the taken 1853, the half- loss;” that “in corresponding to a subjected debts 183.7 Yet a similar reduction.” underwent similar coin and smaller dollar dollar coined únder-the act fractions of a mistake, as to the except is all a argument constitutionality. Mr. Potter’s against the shows for from the of the seventy-five years, beginning down the act to these tender government authorizing legal notes, all the through peace most pressing exigencies war, its direct to efforts Congress only by regulate —not from time time, value, to its intrinsic coinage according the narrow but also it limitation on the imposed right tender when from intrinsic for legal value diverging slightly shown a determina- special temporary purposes—has tion, as uniform as just, keep stamp upon th'e.govern- ment coins a true index to their and to value, so regulate these coins as that should have and their actual express values. reference to the debates Nay, Congress, be seen that the will to debase the right coin aud make the debased coin such wise as tender, in legal affect the materially debtor, creditor rights not never far prPfessed but so as the only asserted, that, has arisen, has been question right repudiated. (jk’ectly So, therefore, the and other difficulty, persons judge's, had have if this why, under perceiving Congress, power to coin could coin métallic substance and money, any stamp an value, it with it would not have arbitrary equally to declare its notes a tender without power treasury legal reference to their intrinsic valué—is a this difficulty from, court is freed and that should never have existed. I Indeed,. look in vain of the dec- to-day production laration, to these prior one one legal days,.of judge, statesman, one commentator, that Congress, by power “to coin money value thereof,” regulate possessed even' metals with false and right striking' arbitrary therefore, to make a right, values.' promise pay—a not to be at expected the time for which it was propáse' kept made, at other certain or definite time—the substi- nor for the tute audio thing promised, creditor to oblige every this of his debtor instead accept of the thing promised, not within this provisions of grant Congress “to coin we thereof,” value regulate have seen that no kindred the value even power fixing Dec. argument against constitutionality.

Mr. Potter’s claimed or has ever under been attempted coined moneys that grant. therefore, in other to seek driven, parts

We are notes a ten- to make treasury Constitution between at their nominal value der pre- private parties (cid:127) debts. existing it has But been asserted that the thus making “

the bills tender is a neces- the sense in which those words are proper” sary —in settled to have been used—to into effect some one or carry more the Coustitu-' powers delegated tion. I the sense which say necessary proper” used, those have been settled woi’ds to have been because I admit that this court has decided are to that to their literal and construed precise according meaning. of this

Those court who stated the dissentient judges v. that it was claimed Hepburn Griswold* that opinion act to the test whenan this clause Congress brought its must be Constitution, absoluteand its necessity adaptation conceded, purpose no claim of unquestionable, stating mine; and the discussion so .question, pursued fully in that will not be since I shall opinion, necessary, adopt words the for these most liberal construction ever asserted 'this court. Indeed, whatever differences exist as to the true might construction of this clause of the Constitution, a lawyer, this I tribunal, am bound supreme to remember addressing its was since defined and settled here. meaning long clause, first In the of this very meaning discussed. There were those held, who greatly Mr. that it authorized Jefferson, those means without which would be Others took a more nugatory. liberal grant view of its latter meaning. prevailed Congress. The discussion was then renewed iu the Cabinet. Wash- followed Hamilton, who ington finally opinion main-

* Wallace, Ot. Oases. argument Mr. Potter’s against the constitutionality tained more liberal view. the discussion Subsequently was-from time to time renewed in until Congress, finally came, of this clause in 1819, to be decided meaning court, in McCullochv. when Maryland,* Marshall, J.,C. for the court, the result whole of their speaking gave most careful consideration, that definition which precise op counsel admit was, his intrinsic posing rea perfect into the texture of our soning, constitutional law? wrought Nevertheless, utmost that chief ex who great justice, tended the Federal farthest authority limits, said, then was: “Let the end be let’it be within the legitimate; scope

Ccrstitution, and all the means which are appropriate, are plainly end, to that adapted and which are not prohibited, but consist with letter spirit Constitution, constitutional.”

We must to the inquire, therefore, exercise of which one of the powers “it is delegated necessary it is even appropriate proper,” plainly adapted,”

III. tender was not legal exercise The. necessary, of plainlyadapted nor appropriate into execution carrying any thepowers expresslydelegated. can

No one read the opinions of the courts which any have held this law to be without constitutional their finding decisions the put of this distinctly upon importance provision to enable to borrow government money on carry war, and to maintain its existence. But it is very sub-

* Wheaton, 4 Dec. 1870.}'

1 constitutionality. argument against the Mr. Potter’s after nine mitted, experience past especially years, no such existed, no snch necessity advantage at was On no time provision. gained by contrary, before since establishment government-was so time national'wealth private debts, great;_at no. to the means of the so The reduced. proportion country, in. had led suspension very general liqui- panic The dation. had tended agitations succeeding years check men new forming engagements, entering no time At had so few new upon speculative undertakings. schemes been had so few bubble capitalists proposed; n corporations been so had little projected; specula- general tion At time no were our so ex- .prevailed. traders little tended, or had- our fewso debts debts people (excluding at the end terms The banks maturing long years).fl had already suspended government specie payments for months before the issue of these notes. The entire busi- ness of the done in unredeemed bank country being notes, which were not a treasury tender in paper legal of debts, but which, payment nevertheless, circulated every- where, never fell at the centres of trade to great considerable depreciation. deter- Finally, government mined an issue of tender notes. legal

The of the notes security, was not increased clause. Had been issued without the they clause they would have- been secure. Without it, still equally had', they as as-with it, whatever fully credit and of the security faith could them. give So, too, clause, without have would they available and valuable as been equally now, in all lands, for taxes, payments public or other dues The value that clause did government. give notes was the debtors to power gave discharge pre-existing them, debts with as with real I equally dollars. pre- say debts, because, existing debts, contracted subsequently been notes, would have in these dealings country whether or had been made a tender. was, at the time of their

country on its deal- issue, carrying in the unredeemed ings paper banks, styled

n VOL. XII. Legal

482 Tender against constitutionality. argument Potter’s

Mr. meas- ail transactions were which’ ordinary “currency,” had not at that made. This ured, currency payments cent, than 3 below specie more per time depreciated as at once standard; notes, issued, soon as treasury yet char- value. Their tender the same fell to depreciated better, never seems at time to have imtde them acter any solvent debtors bills of other any suspended than that clause. not containing indeed

It has been urged insolvency general not followed, have had debtors been' authorized would ruin with these But what their demands notes.* meet really haye these effect had not been made a been the notes would debts ? would Necessarily they pre-existing and as as secured useful for been well payments have as now. would have been dues as They taxes public now, service, for the valuable goods, purchasing True, have his the debtor could not and labor. discharged them; In but what of that? debts long standing the debts of the consisted of commercial country part, .great in what even then was styled “currency.” payable paper, the debts of the country As to already specially payable bulk of the matured within residue in currency,” great had the debtors not been to have time, so able that, a short notes depreciation benefited by slight treasury wide times, it would have caused no such took during place had would in have For no event disaster. spread argument against Mr. Potter’s the constitutionality. in 1812 were ever a made at’ government legal.'tender and

all, So all' yet generally. circulated England during the notes of the were wars, bank never Napoleonic great m,ade a tender. law a tender, legal They everywhere at the so counter of bank as the bank .except long pays 1797, however, In specie. authorized the government law bank to The that specie suspend payments. provided* the bank that if suspend sued on might specie payments; its notes it to the courts and have 1) might apply (§ proceed it on such terms as stayed ings against might just; voluntarily receivedin the notes (§ payments should 7) as of cash. But notes were payments regarded made, a dues and taxes. tender-except government legal Nevertheless, answered of our they every.purpose notes.† those notes

So United States were not a tender always were; rated with those which and as-matter of equally high currents of the fact, capable being proved by price day Griswold, after decision v. Hepburn treasury were not notes constitutional a discharge pre-existing at debts, once advanced market value as compared with gq]d.

But, were it conceded that the tender qualify legal to these notes a material which would gave advantage the, it, not have can without how be said that it this possessed “was necessary provision proper” “appropriate to the exercise ex- plainly adapted” powers to pressly delegated Congress? should be borne in mind that

It (except single a of commerce, to which Tahalí aspect>of regulation pres- this has been maintained provision ently refer) III, 38, George Pickering’s Laws 41 Chap. Statutes Large, 523, at 1811, Britannica, title, In Encyclopsedia Money. penal it was made † bank,at England buy premium, to coin at to sell fact that was made the .mere stronger

from no is it it. In other sense or efficient appropriate, more the exercise of at to of all or auxiliary any adapted, powers. the delegated “ if this tender be a concede that I provision proper to use the the Penn means,” «L, words Strong, ancillary tho cases,* powers executing delegated singly sylvania which is it is means Any appropriate, enough. together, into two or more or to effect all of adapted carrying plainly is not on that accountless to bo powers, implied the delegated it to one if such relation delegated than tas is the remains, But tho to question powers. sought tho plainly adapted be appropriate, implied exercise ? To be to be at all powers appropriate, delegated adapted it must have some the exercise direct relation powers, some fitness for such the exercise of powers; particular As Mr. Clay those said: powers. felicitously be “The and incidental principal ought congenial with other, of a common nature. The and partake each incidental subordinate, to bo and limited to the strictly ought end bo attained by specificpower.” proposed to the first debate on Referring great Con powers clause, under this that one remembering portion gress Pennsylvania State (2 P. F. Smith), 9. Dec. argument against

Mr. the constitutionality. Potter’s with the of men Constitution contemporaneous agreed, Jefferson, that the means to with Mr. be authorized under be means without this clause must which would grant it is instructive to note how even those who nugatory, favored a more liberal construction of this clause regarded it.* Federalist, eminent That Mr. declared Sedgwick, “ this clause, authorized must be a

means, known and means in the exercise of the usual to effect delegated powers end, their expressed Constitution.” “ as Mr. Ames must be Or, said, relative and neces- fairly incident to the sarily delegated powers.” “ a subaltern said, as Mr. Giles Or, authority necessarily connected the exercise of the delegated powers.” óthers, it was to be embraced as a de- According enumerated tail of the to' power, inseparable it.” their on And in opinions of the United constitutionality Madison, Bank, Hamilton, both States united Randolph a constitutional means as a natural means of defining ex- the delegated power. ecuting himself

As Hamilton “The said, criterionof what is consti- and what is not tutional, so, end is.the to which the measure aas means. If relates the end be clearly comprehended within and if specified powers, the means have an relationto that end; obvious be deemed within the pro- of national visions authority.” Mr. Madison elsewhere said,

As the constitutional means “a and. direct must be incidental must auxiliary;” be “inci- nature dental to specified power.” Marshall, C.J., said, As v. Gibbon Ogden, auxiliary incidental be'clearly must power powers expressly given, to be implied.

As J., said, Martin v. “The Story, Hunter, powers actu- to the Federal ally granted must be government expressly or necessary by implication.” given, given of But this provisiou has nó relation, no fitness, * Congressional Debates, 1940; et seq., 3-8, Feb. Ct [Sup; argument against constitutionality.

Mr. Potter’s no the exercise ex- to of one or more of the adaptation- any Constitution; none conferred press powers whatever. other; It is much to one as to the as much auxiliary nay, to conceivable auxiliary every, power government granted or all the forbidden, revenue, as to either or to requiring Its and the fact, aid is derived from the powers. delegated fact, that was made thereby stronger. government single it is an But abuse of to so construe a language grant as to treat which particular powers anything grautee made stronger particular power exercise an incident such therefore be power, implied. to a man- run a to to or to sail a Surely,-a grant ferry privateer, or to establish and maintain a fort and would post, trading hirii to rob on the to cheat his give highway; right creditors; or sell to other to cheat their persons right creditors as an incident to. such a And ..such' yet grant. Would make him would make him better powérs stronger;, to run his sail able his to defend his ferry; privateer; fort. would made the sense that auxiliary They would, him in- do the authorized work. They stronger if he was deed, not able otherwise to' execute his grant, for its execution. But not necessity granted necessity; not .a not to be asa means granted implied, auxiliary;' authorized powérs.

Just this so, tender, if it was prac- ¿my tical I was no importance government, deny, an otherwise aid to the armies, delegated raising commerce, navies, than that it maintaining regulating made not that.war .government could not.be stronger; armies made, raised, commerce without it, for regulated all other had been powers (cid:127)these exercised government - it; without not that it had relation to the exercise of any those as a means, but powers because it made solely government generally stronger. this

Test idea, because sale this indulgences man to one auother, was made wrong better able to execute its powers; that, therefore, delegated to 'those ancillary auxiliary powers. Legal Dec. 487 WO.] Tender Cases. n Mr.Potter's against constitutionality. argument to establish Constitution power post-offices gave has been taken as authoriz- post-roads; this’grant establishment of new offices and new routes, ing the.mails, of offences puirfshmeut conveyance against arid even as to assert a mo- them, authorizing government ¿nd business; these an have powers nopoly ap- and a plain adaptation power propriateness, expressly let us But should sell liceuses suppose government granted. letter, half, or licenses to take fourth, tenth or a to rifle every of all the valuables inclosed in the a tenth letters directed n offices. Will one that such a pretend any particular And authorized? be would yet government would it, for better able to it, richer the-mails carry stronger able because it; is, better of this to exe- authority it it. even Nay, powers'delegated cute the be.that might resource it extraordinary such not be able might without at all. But who will mails pretend such a to.carry the less make would such an necessity assumption unauthorized outrageous? one member of this’ I understand bench to have main another tribunal'* that even a substantive power tained as an incident to the execution implied of a dele might so understand the 1 law. had under power. Ido.not gated direct reverse this to have been asserted stood by those' the Constitution, both before and after framed who adop all the discussions tion, great power Congress; men-who favored liberal as well as those-who construction; and to have been established .favored'strict v. State where Maryland, the Chief in McCulloch Justice unanimous of-the court opinion that “a as gave great independent power cannot be substantive implied or used as other means of powers, incidental executing them.” be, this however whether

But, substantive another cannot, be au can, proper1y incident implied to' an execution enumerated substantive power, Cases, Pennsylvania Tender State P. F. Legal (2 Smith), See Mr. Potter’s argument against constitutionality. .the least, in order to be must at have the same power, implied, the fitness and to to which it is adaptability implied incidental as is of other means. required however, Jt asserted has, been is to Congress judge of what meaus are to th-e appropriate adapted end, that whether a measure be or be not such a particular means alone to .is determine. But it was to decide Congress whether the action was within the Congress authority the Constitution that this tribunal was supreme established. The Constitution to certain delegated specified It also the powers. necessary means delegated proper into to effect. Whether those carry powers au- particular either or as a means thority be'delegated expressly to carry into effect the and should delegated powers, may, indeed, in the first be into place, inquired by legislature. But of this court to revise these determinations of the was asserted, as well uniformly legislature Con- during vention which framed the Constitution, as 'the throughout discussion it was by commended to the people, wisest,men of view political after every tlie Constitu- and has tion been adopted, established repeated this court. decisions said “it

“If,” Hamilton,* be claimed that the legislative are themselves the constitutional body of their own judges and that the constructiontheyput them upon powers', conclusive the other be departments, may answered that it is not that the to be Constitution could intend supposed to enable substitutetheir representatives people will to that far constituents. It is more of their rational to suppose courts were to be an intermediate designed body between and the order, other people legislature, among things, the latter within the limits to their keep assigned authority. laws is The interpretation and the proper peculiar A courts. constitution in is, province fact, must as a fundamental by judges, regarded law. It must, to them to therefore, ascertain its belong meaning, well

* Federalist, 88.

Dec. constitutionality. argument-againSt Mi. Potter’s from the act as the any particular proceeding meaning (cid:127) intention of ought people body. legislative their the intention of agents.” preferred “the clause Madison,* said Mr. “Whatever meaning,” on conferring Constitution (cid:127) into effect the means to necessary proper carry using admitted that none could be have, enumerated may powers an unlimited discretion would give Congress.” “ Marshall*, J., what said C. To speaking purpose,” committed in Madison v. are limitations Marbury, court those if limits at time be these passed writing, between to be restrained. Tlie distinction gov- intended if abolished, with limited unlimited ernment powers are whom limits do not confine the on they those persons aof choice all under the discretion imposed;” powers the court to And in that case means are left them. open held law unconstitutional. Congress .the v. he Maryland, So McCulloch said: meas- Should tho execution of its adopt powers which aro or should Con? Constitution, ures prohibited by under the its laws gross, pretext executing powers, pass not intrusted to accomplishment objects government, case tribunal', it would becometho of this should a painful duty such decision such an act it, come before to requiring say not the law" tho land.” test of The of measure can never be utility any proper n its declared As Hamilton constitutionality. that,great' Bank, the first States United upon argument chartering the Federal which maintained successfully upon power, on side of the which question subsequent arguments said, because, J., have' been C. it ex- Marshall, based— hausted the in which that side—“the degree arguments a measure is never can be a test of .the necessary right must matter of can it. That be a adopt opinion, abe test the means between expediency. relation toward end, between the nature of meansemployed

* 1 Congress, p. Annals argument

M'r. Potter’s against constitutionality. the execution of the must and the objectjoi‘thatpower, be the criterion of not the'lnore or less unconstitutionality; necessity utility.”

I concede that if a means be appropriate, plainly adapted exercise of an enumerated and not power, prohibited, then, whether it useful or is for Con- maybe not, alone to gress I too, that judge. agree, engagements by which purchase arms, worse may prove than useless, to buy not be ships 'needed, and may are like, within the engagements constitutional powers and that this court Congress; into the inquire of their in such propriety But what judgment regards. these measures within the brings constitutional of' powers Congress, except appropriate, plainly adapted means, to the end of to make war, to. enabling Congress maintain navies, or to. other powers executing expressly are therefore authorized delegated Congress ? And, —and whether authorized, useful or being useless, whether Congress judged-wisely is not unwisely them, selecting open review.

As Marshall, said in J.,C. v. Maryland, in McCulloch dis cussing the'United constitutionality States-Bank, “Were its less none can nécessity apparent, deny an being measure; arid appropriate if it is, the of its degree necessity in another discussed place.”* But where a means has no fitness, no adaptation, except that it maltesgovernment that it is in that stronger except w'ay then, if it can be an considered author- useful— therefore ized means—one that be which I may implied, dispute—the constitutional to power exercise that means must, in event, alone-; that that depend utility that this court such utility is, event, the ultimate judge. * It may be here appropriateness stated' that of the bank as a fiscal agent government to enable tho money, taxes, borrow collect and the like, although not now apparent, so seems at the time of tho decision in Maryland McCulloch v. generally whether, have been conceded. But notwithstanding means, that appropriateness, it was an authorized was most contested, severely government since money could borrow collect taxes it. without ’ Dec. argument against

Mr. Pott'er’s the constitutionality. court was If it be insisted that this never meant to judge utilities —that this is the of such province legislative, and not of brauch an- judicial government my— swer that out of as'an is, absurdity grows selecting ap- incident, or means, auxiliary propriate the.delegated which has no fitness, that no to such powers, adaptation it that makes except merely powers, government stronger. means that increases For if strength government

’ taken as therefore to be be as a constitutional may implied be, for that mere means, fit—which I quality, deny—then that since this remains court is the ultimate of fit- .it judge be, it must to that ness, the ultimate according assumption, of whether the measures did, indeed, question judge make government stronger. cannot be a

IY. This assumed as inherent necessary sovereignright.

It is claimed that the to declare what be a shall right tender for' debts is a private inherent in necessary right every That, within the of their au- scope sovereignty.- respective Federal and thorities, ; State governments sovereign that, must be with one consequently, lodged and that, the other siuce it is authority, prohibited and not States, it prohibited must therefore Congress, (cid:127) dwell with taken to be Congress. what ait principle

But upon necessary right? sovereign which has been True, right exercised absolute is. has other So form of every plunder.

sovereigns. does not make it -But limited necessary right established constitutional to maintáin justice. no means clear that this exists in

It right England. Blackstone says

41 is the act of the coining sovereign power, its valué beknownon may nation inspection. fixes on Every it its- own that the impression, standard, weight whereinconsist value, intrinsic known by inspection . . only. . Of this metal all the coin of tbo must sterling kingdom made; 492 Legal Cfc. Tender Cases.

Mr. argument against Potter’s the constitutionality. King’s prerogativeseemethnot to extend to'the or enhan debasing cing value the coin belowor abovethe sterling value.”* To the same effect speaks Coke my'Lord :† “The doth law mines of and silver givo-tho King gold thereof to make metal, money,and not other because thereof money cannot bo made, ; and hereof there is reason for the value great in effect the value of alb contracts, is in effect being the value of man.” every It was, indeed, of.Queen one of the that Elizabeth, glories

she restored her to their true re- moneys value.' Religio mata. Pax Monda ad suuni valorem reduela,” fof fúndala. is the on her inscription monument.

In there truth, seems to have been a genеral misappre- hension as to action base England. Although moneys find I none authorized in formerly issued, England three hundred nearly years past.-

It is a mistake to suppose framers this govern- ment, or the their work, who ratified people intended that ail should be vested powers either government or State Federal On the governments. contrary,, not was an artificial the result of government-; gradual formed the union of State's; but independent growth, the benefit of ruler, formed for or any family, person, ends to secure certain formed those who thus united. were, the "What ends framers of -the those took government Far from to declare. the new care requiring govern- all the should usual powers ment possess sovereigns, forbade some most aud refused expressly sovereign powers, From that others. was the boast of the day grant that -their Federal freest government people limited had ever existed. That -while most powers "it necessary for'protection possessed' against foreign attack, domestic it contained none which individual without of law could destroyed process just rights compensation. laws, bills,

It make ex post is true powers pass facto * Commentaries, 1 Institutes, 278. † Dec. 187.0.] constitutionality. argument against.the

Mr. Potter’s forbidden attainder, titles of confer nobility, expressly for were But Federal they State and both governments. their virtue of because both, by bidden otherwise —States its virtue the Federal by authority, government original its within enumerated province powers expressly —each at the time and this exercise these powers; lawfully might- discussed of the was Constitution fully adoption were Indeed, friends of Constitution understood. called that the restrictions upon to show upon very generally were not to be taken the Federal implying power it was not .every powers expressed. Accordingly grant the restrictions the Federal where shown that upon govern in the were as excep ment contained Constitution necessary A Constitution. particularly tions powers granted made in the convention was statement precise Virginia very which Mr. Edmund Randolph particular grant by was a limitation.* on the Federal each restriction power true, restricted tender, also, power though It wTasnot forbidden to silver, the States to by gold it but was neither granted. Federal government; in the Federalist As Hamilton said :† “ shall not be done which there is declare that things Why instance, should it bo no do? said that "Why, power be not restrained when no of the’ shall liberty press power restrictions bemay imposed?’1 given asked, in the Mr. convention, And Virginia Marshall‡ “ were when asserted serious that if the if they gentlemen interfere had w’ith the State militia power governments The-State it was ? he said, implication governments,” “ not their from the did derive General powers government, each derived its powers government people, each act was to it. powers according giveu Would this? man so? any deny any say Could gentleman man that this Could not retained say power States, as had not away For,” % does he, gioen says remain it is till ?” power given away * Elliott, 3 No. 464. 84. Elliott, † ‡ Ténder argument against

Mr. Potter’s constitutionality. Indeed, where a is neither particular expressly nor considered as means granted fairly executing it cannot, because of its powers, or of granted necessity since importance, those implied, pqwers ^sovereign which the framers thought necessary enumerated. expressly as Mr. Madisoii “is distinction,” said,* to be kept ip .(cid:127)“A view between a for the necessary proper govern ment Union and necessary executing In the latter case, the enumerated included powers.” powers were not iu the express powers but to be drawu expressed, nature, each. In from the of the former, the com powers the enumerated. expressly This posing government constituted nature the the peculiar there government; no-power, of enumerated could-be not the fore, nature general inferred from of Had the the treaties, for power-of government making ex however omitted, been it necessary ample, might have been, have the defect could been or Iameuted, only an supplied by (cid:127) amendment of'the Constitution. in his Commentaries,† So it Story, down Judge lays : “ the other a rule of hand, On equal is, not importance to en- of construction the the large given beyond fair scope terms, because the merely restriction is inconvenient, im- If and even mischievous. it be mischievous, politic, the power evil lies the with the redressing people an exercise of If do they amendment. not choose to apply it fairly presumed that the remedy, may mischief is less than would arise from further what extension of the power, it least of two evils. Nor is the should it be -ever lost sight United States is government one of limited and enumerated and that a powers; departure from the true import- is, sense of its pro tanto, powers establishment a new It is Constitution. what doing people theyhave not chosento themselves. It is do usurping functions a legislator those of an - deserting expounder law. Arguments from drawn inconvenience impolicy here to be ought of-no * 1 § † Congress, p. Annals of 1900.

Dec. against

Mr. Potter’s argument constitutionality. The sound is to Hta lex only declare, weight. principle seripta to follow and est,’ obey.” Mr. said, Webster

So reply Hayne: jt sir, The erected this people, government! They gave Constitution, and in that Constitution have they enumerated they which have bestowed on it. have powers made They a limited have defined its government. They authority.”

And so was this as to draw distinctly recognized Chief Justice Marshall, v. McCulloch Maryland, sharp reproof:

“ This all to be one enu- acknowledged by merated that it can exercise powers. principle to it would seem too to have powers granted apparent required to be enforced all those which its arguments enlightened friends, while it was before the found it depending people, That is now necessary urge. principle admitted.” universally And so this court, other cases,* declared that “ The had a people States exercise right prohibit were, in their any po'wers judgment, incompatible makq of'the objects general compact; powers State eases, government, subordinate to those given nation, or to reserveto themselvesthose authorities which sovereign might chooseto to either. delegate

“The surrendered, of the in- States is sovereignty many stances, where the surrender can of benefit only operate and where, no other is conferred on people, perhaps, power than a conservative to maintain the principles established The maintenance of these Constitution. in their duties principles, purity, certainly among groat One of the which .of instruments this government. duty is the .may peaceably performed judicial department.” ' however, So far, from the of power making promises of the a substitute for the government promised legal thing been as a when having regarded necessity government this was it to me established, seems impossible Virginia, Marshall, Hunter, Cohens v. per J.; Story, C. Martin v. per J.

496' Ct against

Mr. argument Potter’s constitutionality-. to review the times without convinced history being was not not necessity, regarded but rather anas evil to be forbidden. The "V. history the Constitutionand indicates country

. intended, that this was'not to be exercisedat re- all, was served,to thepeople. natural Looking-to Constitution, how history it'is that the tender, probable power, respect now claimed the Federal was intended government, to be to it. The union of the was Confederation granted established same as the It Union. purpose present “ to be' the Articles of Confed- equally perpetual.” By eration, the Confederation had the identical it powers given which the Constitution to our- respect money gives Federal And needs the sore when, government. yet during Revolution, -it notes, did issue wished treasury make them do tender, found itself so.* powerless tender; States, their bills made, however,'generally and with the all result, Judge Story says, prostrating “ credit and all morals, most private -private entailing enormous on the evils country, system introducing fraud, which chicanery, profligacy destroyed private confidence, and all industry andenterprise.”f

Indeed, framers had themselves Constitution the mischief of these experienced which experiments, declared to have excited the disgust Convention all the of America.” respectable learned counsel part [The referred here action of the Convention framed' Constitution in out the clause authorizing .the striking emission of bills ‍‌‌‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌​​‌​‌​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‍on the credit of the and in States, United from, the clause the States bills adopting restricting issuing credit; Mr. Madison’s remark as to the especially matter, first that it would “cut off the pretext making a tender;” them to the declaration of the Federalist (No. n 44), and to the debates of the State conventions held to

* Story’s § Constitution, on the Commentaries Ib. 1371. § † Dec. 497 Legal Tender Cases. against argument constitutionality.

Mr. Potter’s lie also of tins the Constitution.* quoted opinion ratify v. States v. court United Marigold,† Missouri,‡ Craig Ogden Briscoe Saunders,§ Fox Bank v. v. v. Ohio,|| Kentucky,¶ declaration of Mr. Webster. also to strongly-expressed are of the dis As these authorities quoted opinion are here they senting justices,** omitted.] To recapitulatе:

The Articles Confederation the same gave power that the Constitution Confederation gives Congress, Nevertheless, the value money coin thereof. regulate never assumed the Confederation to make notes treasury tender. legal did make own

The States their notes a tender, with results people. disgusted when Convention met that framed the

Accordingly, Constitution, struck out of the draft the existing on the credit United States, emit bills order, not it be a might pretext Madison says, . declar- such bills teuder.. g from the took States

They making anything tender, and and silver a even refused to its. gold permit exercise with permission Congress. State every was declared whose' debates

It on adopting reported, the Constitution be- paper was to to. end an put several the direst

For needs of the years, Con- country, never asserted make right gress treasury tender, but, nature of

Mr. Potter’s argument against constitutionality. Not Mr. Madison had no only thought Congress to power a make so; but Mr. Webster paper tender, and the thought has been power denied and frequently Congress, prior to. the law in never'contended for. question framer of Constitution, No no no commentator, judge, (cid:127) is found to this law claimed prior such .w.ho power Congress.

With the clause it to coin and giving money regu late the value thereof, received also to Congress fix ; ihe standard and. and, as the Federalist* weights measures declared, like considerations on with the previous power n coin, which it considerations, added, were 'regulating to for the and provide, intercourse harmony proper among But can a fix and States. then standard, to reduce its its tó inches, foot six pound ounces, eight acre roods, to two thus that man no shall collect provide contracts, his and that no one-need than more one- pay half what was ? if for And cannot bargained do this can itself, the standard arbitrarily regulate measures, sales licenses which weights by making n would to dollar a holder, for to give paid, every right or an abate increase an ounce, inch, rod, or or in every contract of sale he made? And fix had yet'the right and measures is weights sovereign right prerogative, as well as the to' coin the value right regulate n .thereof. n This VI. tenderpower was not nor consistentwith proper, ¿he letter spirit Constitution,and voasprohibited.

In to show an seeking be auxiliary power, implied, have must in itself some relation to particular and fitness for the exercise of the delegated power powers which it is claimed have been incident,T treating ques- tion as-if these were the considerations only But,, required. ipdeed, that is all; not must auxiliary ,be appropriate, the exercise plainly adapted

* No.

Dec. IíEgal argument against

Mr. Potter’s constitutionality. end and within but the rmlst be power, legitimate, delegated as well; and the Constitution scope means.must an such adapted not merely appropriate plainly also but must be not (cid:127)end-, prohibited. have v.

But the Griswold* Hepburn judges dissenting “the is too for their said that perception, argument vague the indirect effect measure public great and other bonds, value lands, stocks, depreciating renders such as taking private prop contracts, a.law-invalid or as the owner of it without use, erty public depriving creditor, due law.” But its effects of process If but this does not operate indirectly, directly/ provision notes, issue of without this in .the prevision, treasury by and values, or prices by depressing making flating creditors, to affected that would be'a hard realize, easy of the evil from the action resulting indirect which .case as a could not considered measure impairing public, case, But in enabled debt this authority.

ors debts note to discharge pre-existing treasury by promises, real their debts one- instead of by discharge paying dollars— due, of the amount half or three-fourths according othei’3,that each tion; of'them, one they happen, to among authorized Constitution. Can it need expressly by the. show,the the to, distinction.-between effect of a argument in au prohibition instrumentjipo'n general power expressly and authorized, upon one.only implied? ex The'people to this certain pressly delegated government powers; among them express power war,” “declare although the value of would depreciate to “establish a ships; system it would' of bankruptcy,” although debtor discharge creditor; to his from his liability collect, “lay duties remit should enhance imports,” although they diminish the value of furnaces and mills. They delegated,

* Wallace, Dec. against-the argument constitutionality.

Mr. Potter’s also, to “make all laws neces- power into execution the sary proper carry granted powers. Amdthen to make sure that should not be powers implied those which beyond might impair granted private rights, added the that “no should be provision person deprived life law, due without nor should' property process be taken private without Had property just compensation.” the Constitution conferred power express make .to njny what law declare to be beg dollars. But the question is Indeed, power to injustice. work such until law is such or ex. established pected, the risk it cannot he said enter into the contract. .[Sap. Cl Cases.' constitutionality. agAinst argument

Mr.-Potter’s 1816,* in the Circuit in a cause tried the course of In is reported Mr. Justicé Washington' Court Philadelphia, was remark interlocutory made the to have n notrestricted of contracts. obligation impairing remark, either without has since quoted This been frequently , aof casual is a instance It singular disapproval. approval unaffirtned unchallenged observation, years passing This the Constitution. all the commentators upon by great Federal said in by government was grant reference was If it meant that invention. foran of patent I not it. shall dispute its voluntary to recall grant, at liberty was not compelled meant that even If it government it, need for government I not contracts, dispute own its keep to its sued coerced. It can bé according never he only can be not constitutional it be or and whether own provisions;, without fully its contracts per extinguish can remains that the creditor it nevertheless them, forming recover, more than the government .in no event anything . indeed does not imply he shall have. chooses remark that it had such power; that Congress general in the exercise of limitation not restricted such was by any powers'. granted particularly of contracts is to -impair.the obligation .That terms, ad- forbidden I express not to Congress generally of the Constitu- It Unnecessary, upon mit. theory such the case That to have-so forbidden it. 'tion, therefore to authorized, is expressly of bankrupts favor, as forbidden prohibitions be taken by general of. withheld I also But that it is admit. private rights, not. is, I It the authorized forbidden, otherwise deny. except cases, forbidden, indeed nature very instru- fact that is not authorized. ment, from the It forbiddem amendments those which the infringement of-pri- forbid scheme and It forbiddén property. rights vate instrument, itself declares was “to it. object justice and secure the establish blessings liberty.” Eaton, Court, Evans v 1 Peters's Circuit n Legal Dec. Tender Cases. Pptter’s

Mr. argument against tlie constitutionality. Thirteen States met a to form common Be government. fore such as tlieu formed, except this meeting, govern ment had no existence. Certain were invested powers for" in the hands of general what advantage C. Marshall, J., in McCulloch Maryland, called the common what agent;" v. common,arbiter. in Daniels, J., Fox v. called the Ohio, Such of these were powets-as to important exercised for the like the general good, to make war, a power maintain navy, enter into treaties, like, conferred on the agent, and were States; forbidden' to others were left concur both; to still others rently were forbidden to both. Among power's States when thus met was power to contracts; impair but within their obligation only limits. New York had respective to con power no impair tracts in Delaware, but York; New nor had Dela only ware Délaware, to contracts in York, New power impair

. Now, the whole of the time shows this .history was as a as a to be lim regarded power; dangerous power ited even between the States and their own citizens—not to . beextended was, all. It therefore, forbidden to the throughout States. In cases of particular, general concern, power was to Federal expressly granted But to government. it ted,-and assume was otherwise it, because gran imply forbidden not to the Federal expressly ¡States gov is to reverse ernment, the whole spirit purpose a times;, to turn a limited restraint’upon evil into permission then, make it Since these except in general. specific stances, when, law, before this has Congress exercise such a ? it claimed to lias ever been power sug can direct divorces—can Congress authorize gested a contract for one man to hundred bushels discharge or fulfil contract wheat by delivering fifty, one convey acres of land nine thousand by conveying hundred? We al! it cannot. know has

Indeed, that impair obligations- contract without private absolutely I authority. find no that has so decided. On court the. contrary, very- [Sup>. constitutionality. against argument

Mr. Potter’s and other court, high reverse- has been declared this very constitutional authorities.* this

If impair by implication, Congress possesses, to establish сontracts, anthority obligation why If to it ?' uniform system bankruptcyexpressly granted without ease took sovereign would be bank connection express surely grant, as a in some where it aspects ruptcies, might regarded ’ indeed, in of the interest commerce, as, of regulation Marshall, J., remarked, “the creditors As C. generally. of law been out had said to bankrupt grow exigencies traders.” commerce, of and to be solely applicable a establish uni refers to the of power_to grant Federalist† with so connected of intimately form system bankruptcy frauds, so commerce, preventive regulation into question.” to be'drawn was not likely expediency to be spe That such necessary‡ regarded was. that the Federal maintain, establishes, I cifically .granted, as it was before even Constitution, took government added, no the restrictive amendments were geueral of contracts. of impairing obligation bench declared, this Aud when the dissenting judges “ that, is difficult to how it Griswold, it perceive v. Hepburn the Constitution to be in with spirit can accordance for the sake of contract creditors’ directly th.e destroy affect to its .to debtor, but spirit remotely individual contrary I answer that nation,” for the of the its value safety is because it so it is spirit, case in accordance one in the other it is not aud declared and expressly provided; is all, it not at it, provided in accordance with because discrimina is restrictions,: in violation of its general —a Constitution, I which, tion those provisions recalling difficult, indeed, it is hot difficult to submit perceive; to perceive. ; Bull, Dallas, Peters, 3 Leland, ; v. 646, Calder v. 657 Wilkinson 2 386 269, Saunders, 12 Id. 206.; Ogden v. Crowninshield, Wheaton,

Sturges v. 4 Federalist, 354; No. 44. 270, 312, 303, 327, 331, 336, 304, Wheaton, No. 42. † ‡ Dee. argument constitutionality. against

Mr. Potter’s however, whole Congress This question, the other depends upon of contracts to impair obligation take can by implication; of what power Congress question of whether Congress indeed, question returns, pivotal let And here me or limited poyycrs. absolute body immaterial whether it be seems to me that it remark, very what means determine that it is considered Congress effect the into carry delegated are necessary proper here, is not revision its decision and that subject powers, ultimate if it that this court judge, or whether to-the means exercise be decided any appropriate make powers delegated would relieve The one conclusion Congress stronger. the other its own conclu-

all restraint but judgment; from but the relieve it limitations of express sion would oí"the If the assertion discretion of the Constitution. when the end is it meant that legitimate, Constitution, and choice of within scope appro- is the exists, sole of which means judge priate means, and that its in such select those judgment among review, I shall not selection is not it. But to open deny means that the hold into selecting carry Congress, effect of select means any delegated powers, may not the authorized, not nor not nor necessary proper, appropriate and can make them adapted, appropriate plainly simply by is to make the them, Us of selection Congress gener- of absolute. ally a decision hand, the other this court

On that Congress, to raise armies o'r execute of its order any enumerated exercise other that may make the any powers powers, gov- without to the ernment fitness of its stronger, regard meas- such ures that it powers; take delegated any power to execute which gained strength delegated as incidental those powers or fit really therefore —whether and whether within the not, of coming general prohibition or a doctrine the Constitution not—is which makes equally leaves as to absolute,.and except Congress provisions it— forbidden Constitution itself—without chock especially . [Sup. Cfc. argument against Mr. Potter’s the constitutionality. ; limitation makes much'of bill of great .-rights

contained in the amendments of no effect.

It indeed as because, J., Strong, maintained in. cases,* there 'Pennsylvania not powers enumera might ted-, not means even to execute the which delegated powers be claimed as might. from Constitution, resulting would transcend the limits -intended to be fixed by Constitution, that the insisted people ameud ipent and-inserted their declaration, which general properly, maintain, I’ prevents taking, by implica tion, of persons any power deprive property'without pro of cess law.

What the amendments to the do Constitution ? provide that shall not Not particularly impair obliga- contracts; it tions-of not shall not particularly intervene to declare what shall be a tender discharge pre-'' debts.between .State; citizens of existing any they .pro- be. shall not vide taken for private use property, public without nor compensation, just auy person deprived this, due without But law. process property takes, the clause creditor’s of one the-.exteut property por- action; of his takes it,No be sure, right tion directly takes, use, asserted, because but, public necessities, debtor; it to the takes public gives equally it from him creditor, it'from takes -without com- So, too, this clause legal-tender deprives pensation.' his of his extent one property portion creditor chose in debt, action, 'due, his withoht process any, what is this done? Not law.* By authority express Constitution; not pretended. authority its Be im- authority'to Not surely by. implied authority'; “ not must be within Con- scope plied prohibited, stitution, consistent with letter and But this act spirit.” which thus without creditor strips -his-property pro-' the. of law is It establishes cess injustice, absolutely prohibited. with the letter of and cannot therefore be consistent Smith, State, Pennsylvania 2 P. F. . Dee. constitutionality. argument against

Mr. Potter’s Constitution; establishes and therefore flatly injustice, , therefore whole and its scope purpose opposed —cannot be possibly implied. as which the court’ Now proposition, as to the second tender effect of this is, has directed argument —that transactions. law provision upon subsequent contains It observed that the Constitution nothing limits whatever in to tender that it States rospect except coin but and silver a.tender against gold making anything debts tender ff of debts. whether the payment But r should, coins of which silver, be of and gold to declare. No lim- either or it is left with the both, States for itation as to the adopted, might coin§ class time our decimal at that Indeed, was imposed. purpose such coins as those we use No was not established. system and ac- methods-of and various coin existed, descriptions established count in all States. early prevailed under its and, decimal coining system, coined and the value thereof, moneys according regulating of account as the unit to that with the dollar system, value of different foreign relative coinage, regulated' coined The dollar thus coins with dollar by weight. any express cz even without necessilaie, became, thereupon dollars, such for for contracts lawful'tender, law, calling a con- tender for and wheat is a lawful as wheat, just only, wine, since for aud wine a contract wheat, tract The States contract. .with satisfies the alone complies debts, made no other coins payment having of account Federal all system adopted-the having the uni- remained the dollar has thus reckoning, has become also debts, such tender, payment versal ivhich calculation, damages unit universal made. Sub- all recoveries money are estimated and dollars, called also notes, issued sequently course, con- Of circulation. into universal went for these implication either tracts expressly calling pay- discharged are satisfied dollars treasury-note 508 Legal Tender Cases. argument against constitutionality.

Mr. Potter's ' meat of the them; number of requisite and this because they meet and the contract —are satisfy what the contract re- would not quires. a contract; such neither' Sovereigns satisfy would a contract for they dollars; nor satisfy would specie of dollars any description a contract satisfy for sovereigns. "When, a man has therefore, a contract which dollars upon " are due,-the first must what of. dol- question be, description lars is meant it? If these then the dollars, by treasury-note number contract, of them will" and will stipulated satisfy it whether such notes be or a lawful be not satisfy “ equally debts,” unless, indeed, tender these payment treasury are notes unauthorized and invalid. wholly it If were an I should be think open question, disposed had no to issue bills power of credit. Look- at times; at the action of the Conven- history ing Constitution; tion which framed the at the declarations of Conve.ufion; men who in that at the participated general opinion States-when the Constitution was" throughout seem, considered, first it does to have been intended certainly that 'no power should be issuing paper money, given at all. None the less, to borrow power money does embrace the to issue for the obligations borrowed, can, be taken of to sustain the perhaps, itself issue of its bills of credit. government was existing by regarded many very, early history and in did government, government out put notes, which circulated as treasury not money, although declared a This course action .tender. repeated 1842, in 1837, 1861, and has been and sustаined .continued this court. So that whatever have been might originally .the determination proper now too question, late to assume that the Federal does not possess to issue bills of and that are credit, not valid. they valid, will of coufse Being- they lawfully discharge con- any made tract in them-; and expressly payable any contract not which, so now although particularly expressed, implies it is made is, in them. That contract sim- payable “in dollars,” which the term ply expressed which now Dec. against Pottur’s argument

Mr. tho constitutionality, a decree on contract for therefore, hay Whether, |my. a

those notes are lawful tender in treasury of debts payment ,or in the sense of the not, Constitution, it is nevertheless are, true they a continue, medium'of may properly and that contracts met can be exchange; recoveries by had in them. when tho

Nevertheless-, courts come to turn contracts claims into debts; when come to assess judgment they dam- and allow remains, recoveries for ages, question wrongs, in dollar; can do so or, it law- they treasury-note is no for such ful and must the court money purposes, make their calculations, allow their and stat’ePtheir damages, judgments in the coin of the as the authorized constitu- country standard of tional value? ox has converted. Its value is

My keen specie $100 dollars. A me treasury-note $110 recovery by given of cither of those amount dollars would ho and make just, me whole. And it seem not, of much therefore, public whether recoveries in law should had importance be made dollars, as Pa- reckonings specie on customary cific coast at -a quoted they (where greenbacks” discount), or in tho dollars, on Atlantic treasury-note side (where at a And can specie quoted yet, premium). anything than to have irhportanc'e the value of public greater every transaction instead certain, fluctuating measured ? standard

Nevertheless, whatever its importance, question to make these notes a tender power payment of debts remains.

If has such where is it power, To granted? what can it bo power delegated as aux properly regarded I can find none. It is true iliary? these note? making Tender Cases.

Mr. Potter’s argument'against constitutionality. tender for transactions does a, impair subsequent as it must if a tender for private rights, pre regarded not, debts. The existing against power presumption therefore, so latter case, strong former in.the remains. conferred Where was it question yet power I I cannot has been find that it upon Congress? repeat, conferred at all. The the Consti power given Congress'by (cid:127) coin and of tution to the value thereof, regulate coins, and to counterfeit provide foreign punishing States; securities and current coin United ing it to fix the standard of the analogous power given weights measures; and restriction (cid:127)and coin and silver making States against anything gold that the debts, combine to establish tender payment what has no to make any legal it action of the coin strikes. The Con- ever except that. - Constitution,' framed the' the discussion vention which recommended to the the debates which was people, conventions, which and the whole it was State adopted, establish that the of the times combine also to record to be credit tender was not intended make bills of a given jit all; that, but on the contrary, Federal government intended, believed to be aud beyond it was wholly in his Commentaries of either States or Union. :* Story says . bills of credit’ cannot, ‘emit “The prohibition perhaps, than vindicated by forcibly quoting glowing language more of justified by every almost language of the Federalist—a in its truth writer, and attested facts by contemporary turns at once with mind involuntarily .away disgust which indignation.” and seen, met the warmest as we ap

This have1 prohibition, considered Federalist,† aiid evidently . probation aud all sub paper author prevent by (cid:127) further The Federalist that: for coin. stitutes declared‡ are weary of America sober fluctuating “The people have seen directed the councils. They has public policy No. 44. Ib. Sec. 1358. ‡ † Dec. against constitutionality. argument Potter’s

Mr. that sudden and and indignation regret changos legis- lative interferences in cases became affecting personal rights jobs of hands and influential and enterprising speculators, snares to the industrious and less-informed more part seen, too, have one interfer- community. They legislative ence is tho first link in every a chain long repetitions, interference effects subsequent being naturally provoked by infer, therefore, that some They very rightly preceding. on which will reform banish thorough wanting, speculations measures, public inspire general prudence industry, course to the business give regular society.” v. In Missouri* Marshall; said, State C. J., Craig : paper motiey speaking

“Such a medium has been always liable considerable fluc- tuation. Its value is and these continually changing; changes, sudden, often individuals to immense great expose loss; the sources of ruinous all confidence speculations, destroy man between and man. cutup To the roots—a mischief whichwas States, the United through whichdeeply felt mischief and, the interest prosperity people declared of'all—tho affected their Constitution that no State should emit bills credit.” And so v. Saunders: Judge Ogden Washington † “This was„to a fixed and policy provide uniform standard of value States, the United throughout tho commercial by which and other tho between dealings thereof, citizens or between them as well as the foreigners, moneyed transactions tho gov- ernment, shall bo And regulated. establish standard at why all for the of the various contracts which bo might entered if into, those contracts afterward might be discharged standard, a different or- that which is not money?” - was the Why power1 the standard of fixing weights measures but to given enable to fix a general and, standard and measures ? weights was the Why uniform power and coining thereof, the value money regulating aud coin, to foreign to enable it given except Congress, a and provide standard value ? And yet fixed uniform cannot have a you measure that have no weights weight,

*4 Peters, 432. Wheaton, 12 † argument against constitutionality.

Mr. Potter’s nor a of measure can 'Ilow, then, standard without length. a A have uniform standard of value without value? you fluctuated in substance or that constantly weight, would not not be made a standard weigh gas —like —could An and elastic variable could not measure height. prop be made the standard of théreforo, measures. How, erly can under this establish a uniform power'to Congress, sys values, tem of and select as the of value, standard coinage all, not a coin at but a and unit; not fluctuating changeable even a at all, of a This thing promise thing? iutrusted to and coining Congress, ay ere the States, restrictions in order to secure put upon value, uniformity preclude fluctuating The when variable called people, to sacri currency.” to issue bills of credit, fice their and make right anything a tender, and silver did so for the same end. This but.gold has never court spoken poAver Congress except maintain the a trust to of the standard uniformity purity trust, and that alone, of value. Under seeks value, establish standard of neither nor pure uniform. a standard without On the intrinsic contrary, .value Avhatevor;.forever uncertain, fluctuating affecting those transactions itdn arithmetical qualities pro their standard instead of magnitude which, portion —a of value, invites forever certainty uniformity affording This is uneertaint}’, speculation, .to extravagance. .the Constitution Avbat It granted exactly Congress. forbade to the what it the Avisemen what exactly States— framed this never who intended either State or government should Federal and what no statesman possess, government the foundation of to the introduction law had ever claimed for it. before court is no mere for to question question the íavo currencies Avheu in value,* nearly equivalent day, cent, argument at the time-of this per Gold was about 10 worth more (cid:127)< States, notes of United called tenders.!’ There had been than 11ep. rebellion, time, during when it was per worth cent. more. — Legal Dec. 513 Cases. Tender . argument constitutionality. against Mr. Potter’s it is whether this tribunal will estab a supreme question lish, values, as the standard permanent dealings, of this without great'nation, something engagements intrinsic value at all—a forever uncertain fluctuating unit. de- is that decision question importance determine, and must upon, powers

pends Congress if For may impair respect private rights. Congress in other re- of contracts in this respect,'it obligation is the most of contracts among spects': obligation is, as to which can It important Congress legislate. subject said, Marshall well which comes as Chief Justice man; the interest controls the ’home to touches every in that at the What was true founda-' credit all. regard saw the when fathers tion importance government, more true when now, our such' power, vastly of limiting in notes, bonds, bills, is so extensively represented property and other money obligations. coupons, mortgages, can use this court The decision by Congress to as means leaves' any delegated power, tender provision at use it as an much auxiliary as to bor- liberty or to commerce, regulating rоwing money, levying whenever will,thus be, It war. corporate great wish to their credi- interests country wrong moneyed which shall will create the issue- necessity compel tors, they while, notes; whenever creditors would those wrong; will the law debtors, they repeal struggle making was the created a tender. It the de- these notes feeling not be notes would for pre- cision that such which,,more I think, than tended debts anything, existing from House of the last lower passing deter the their issue. a bill to increase that a whole de- community

Who can deny being such a commu- under system paper moralized, and at all times have been demoralized?' nities everywhere will, now what would have Who men do they can deny existed-?' before system shrunk ten from years ago, men haste do like- other make the wicked When prosper, VOL. XII.

Mr. argument Potter’s against the cemstitutionality. And now, wise. the cities but from only, every men seek-the marts to fortune part, great try'their hour, ventures of where have not hoping gather strewn. with the stocks, combina- Gambling dangerous and the tions invites, which it has- corruption encourages, become so that it is deemed venial to general; artificially inflate or to create depress fictitious values prices, forced by or undue scarceness, combined attacks. And depression by whatever come to debt this danger public great will not come, from the country, of the people unwillingness from not their want ; come, but will pay; ability pay if it shall come at all, from the recklessness of a people out their schemes the waves an inflated carrying upon and from the demoralization which such currency, specula- tions How can it be that this produces. expected people will make sacrifices to enable their govern- necessary faith, toment has keep its it failed pledged when its own faith with its but has filled its keep creditors, coffers sale of licénses to men to each other wrong short has made haste to payments, the de- ratify, by cision of its tribunal, supreme ánd constitutionality of such a ? righteousness course

It-is said of action and decisions, since the.course this was law has been favorable to its passed, To validity. the action of in this I do not attach Congress, respect, weight. There were various as to its opinions power, the time was -one doubt and suited to danger, illy consideration of that question. As Mr. Morris Goiiverueur n letter :said., his to Mr. famous Pickering, legislative lion never will be confined in the meshes of net.” logical And will find always it their consciences legislators in. consider that measure constitutional which wish to they adopt. As to the decisions of the State courts, though majority n werein favor of the and Indiana only Kentucky being law— were almost all divided courts, in all adverse— there were indications that these decisions were doubt- given and,in view of the

fully, crisis, with the existing feeling Tender, Dec. 1870.]

n Mr. argument against constitutionality. Potter’s ultimate determination of the question* under be left to this circumstances, tribunal. should, on Rhode was, however, There decision subject'in Weldon, in the ease of Trevittv. That 1786, State Island, a tender, had issued credit and made them and lixed bills of to receive them at their nominal value. penalty refusing Mr. refused, Weldon prosecuted penalty, ajid the Rhode Island court held the tender provision were the same on general principles unauthorized Leland, from that declared this court Wikinson also v. that-decision, their And for lost office. State. judges the consideration of the This court rather avoided question it after forced the determination Kentucky until When, v. however, Court Griswold Appeals Hepburn. here, had and submitted that case been at argued court, stand ordered over government, suggestion there none counsel, when than were reheai’d, whom iu the heard in'favor of the more eminent country, then After which the court, validity provision. being in advisement, until, a case court, held the under Feb- full it law was iu 1870, when decided that the invalid ruary, of debts. pre-existing respect let

Here me remark that I Grier think Judge right, view he of act, took to precedent applying I which see no of construction this contracts. principle by it has considered that constitu- , statute —if issue a to notes shall be tender tional power legal debts—should be held to embrace discharge pre-existing law no contains such debts. necessary expression the notes shall be tender True, provides-that the kind. customs bonded interest. Thiswas, all debts except a distinction debts. Iu- however, subsequent necessary ' few due debts for customs or since.there deed, relatively this act, interest at time of the of this bonded passage dis-. indicate that it was meant .tinction would rather to apply only if to debts. Rut to subsequent surely, impair pri- to be vate is not taken exist without very rights strong argument against constitutionality. Mr. Potter’s and direct where it does it should not expression, exist, that the intended to exercise it without presumed legislature like clear and positive expression.

1 shall to this tribunal as say nothing general high to courts of importance the maxim stare decisis. justice Those who have been here know judges best how longest it has carefully adhered wisely maxim.

It has been the court to ten- review the urged upon der these-eases, order law as to question to settle the abstract to make character of its members, high its rare and learning by practical wisdom, and, all, above its uniform, cautious, and consistent has course, so secured the respect coufl- deuce of able, this in the to be stormiest people times, to establish the limits successfully rights, powers Dec. 1870.]' argument in Attorney-General's constitutionality. support

of the States and of the General To now, government. the first time in its so history, needlessly gratuitously review an abstract constitutional so de- question solemnly ; cided to not because review or doubts on the it, changes those who decision, shared part through of the court, divert change composition the. of the court itself to people

regard personnel it; aq those who would, aud me, seems to compose he effect to abdicate the function with which highest your (cid:127) honors aré intrusted. For men be cannot sub- expected mit their to the con- powers views this struction of when once learn tribunal after a they that, construction has been most established, can solemnly that construction tlie who change by changing persons corn the tribunal. p'ose who,

Those of us the words of the late Thaddeus Ste- as all vens, “believe, should believe, that the judiciary the most important department and that government, wise, and are the chief pure bulwark of the great, judges lives, liberty, will rights then, indeed, people,” have reason fear that the court, reviewing ques- tion, will, so far from settled having actually fiually of constitutional law involved, the rather have principle un- it; in so and, it, settled have unsettled unsettling also the for the confidence- and submission of this grounds people under determination this tribunal of constitutional questions. contra;* Akerman,

Mr. Attorney-General, Two submitted. The questions first, one, chief considered. will If that chiefly is decided affirmatively must tire second answered so also. to the uniform custom, when

According powers * A brief which had filed been States, case Latham v. The U nited ease, areal or supposed legal tender which having been by the withdrawn (9 Wallace, 145), never came appellant hearing, brief being the —that Hepburn filed in Griswold, same that had been also submitted and v. —was Akerman, relied on Mr. here. Legal Ct» constitutionality. in Attorney-General’s argument support

The are ours is- a court is told that questioned/the Congress and that has no but limited powers government, derived from the In words of what are Constitution. “Who knoweth vexed not such patriarch, things court will not ?” Of course the sustain these legislation iii it finds it the Constitu- in Unless authority question, tion, either expressly fairly implied. given in mod- that a formed It be wonderful would government a measure ern and for commercial people, times large wants, of commercial should be provided the offspring on the indispen- with all powers subject —that have beeii sable instrument commerce—which possessed The commercial nations. of other by .governments soil it not fall into barren when world’s did experience men who framed into the minds cast history were well States. of them Many of the United Constitution All had seen their in financial' of them versed history. a Thus memorable financial experience. country undergo went their instructed, work. They gave on the laid Con- They powers subject money. express on the no restrictions under express subject money. gress which this matter restrictions they imposed The only are in these words: the States. They were upon mak'o and silver coin a “No State shall- anything gold of debts.” payment in the Constitution this clause—the place From mind the rules of strict named—a whero'tender is guided of national derive construction, and jealous power, might a tender is in prescribe that the legal the doctrine right doctrine would have foun This stronger the States only. than- most of the letter of the Constitution dation iii the forth va put seriously against propositions no advocates; tender act. But has at lidity deserve consideration views court. least none whose fortified invincible reasoning, would encounter It 'from date. Con very early practice what should be never hesitated has enact gress Dec. Tender Oases. Attorney-General’s argument

The in support of the constitutionality. tender iit of debts. payment thus-to enact right has iu statutes, been assumed iu twenty-four passed presi dencies of Jefferson, Madison, Monroe, Jack Washington, son, Polk, Fillmore, Pierce, Lincoln, and Tyler, Johnson.

Before the act now the authorized tenders question ; were all iu metallic coin but under iir modifications purity value, to the of pleasure according Debts Congress.' when a contracted of certain of money degree purity, have been made in same nomi- dischargeable money value, nal less and.therefore less purity, intrinsic value. Counsel oil the other has side to show attempted this that statement, which has often been made in dis- cussions of this is not correct. He into an subject, goes of the statutes, and while he analysis admits that coins of certain denominations have been debased, he affirms that- silver iu the dollar coin quautity pure has remained fact, This if unchanged. demonstrated, does not answer end. It does not his that a man who lent ten disprove eagles at one time afterwards, force of au might intervening act of be to take in Congress, compelled satisfaction of the cent, of that loan teii 6 principal less eagles per intrinsic value: This assumes iu that, legislation contemplation law, has the value every species which the law it; fixes on has the constitutional Congress say that 10 of silver shall henceforth pennyweights be the dollar, and do the office hitherto done 17 pennyweights and 4| grains. have been told

We thus established is practice to the First, present because the argument: pertinent .has of debasement been small.. Because Secondly.. extent remained, which these liberties were taken currency metallic through changes.' to debase cannot- on the extent of right depend,

The exists, debasement. If. the it is bounded right only by In matter constitu- pleasure questions Congress.

tional are not of more or less. at right questions oue time said a has coin of a certain and fine- gold weight ness.shall be worth silver a ten dollars, tender for legal Ct argument constitutionality. in Attorney-General’s support

The has afterwards said that sum. that a contain- coin be ten silver dollars, less of shall worth gold legal ing The to make this debasement tender for that sum. coin of 6 and to to the debased cent., to the extent per give tender for involves of a preeontracted.debts, legal quality the debasement to the extent of carry per cent., and the same coin thus debased. to give qualify see the And it difficult to constitutional prin-. difference fixed, when article on which a value is ciplo legal tender, is’made the nation’s promise paper of its now worth in the market over nine-tenths pay, certain, if the nation its to be coin, faith, keeps value coin. worth par ultimately is a con- to consider that there men peculiar appear

Some whether metal, silver,'nickel, virtue gold, stitutional what is crime them, against According copper. done in if done in Constitution, innocently paper, may of contracts impaired, metal. obligation in be metal. dictates of disobeyed, metal. The justice may in take, frac- A man be lawfully compelled metal* for., Tlic for the what he contracted scope in value of tion within the metallic field. is unlimited of discretion Congress discussions, invoked in such That sensitive being, always “ of the Constitution,” the spirit whom denominate they of is lulled to the rustle repose paper, by enraged though however base. metal, clink of shall be nowhere declares that The Constitution nothing has enacted that of metal. unless made Congress money shall lawful notes be Nobody ques money. these treasury them some to issue them here the give tions has been of This money. expressly of the qualities are court. With certain they exceptions, admitted by for all dues payable receivable for government, and new. The old largest all from government, dues to take is them. land, the bound in the government, creditor in land, pays debtor government, The largest holders States The creditors the United (except them. must take them or interest-bearing of bonds nptes) Dec. argument support in constitutionality. Attorney-General’s

The are maintains that not they money” Nobody nothing. is used in some

the sense in which word places Constitution. “No use money” appropriation [to “shall be for a term and supporting longer' raising armies] be vio than two This would years.”* provision certainly an lated notes to support appropriation treasury drawn shall be of the for three “No money army years. from the appropriations treasury consequence from notes not drawn could be made by Treasury law.”† state The without such regular treasury appropriation. all ment money,” “of the expenditures public receipts time to he which the section requires published same left out. been made. have difierent responses call coin- in the power have found authority Some word that the think value. They and regulate money make, fabri- iii sense—to used is here large “coin” is not limited of the word cate; money” and meaning * § Ib. 9. 1, § Art. † 18.

n Ctl Attorney-General’s

The argument in support of the constitutionality. to metallic but extends to coinage, had everything which been in use as general or which answer the money, may definition which money will embrace a purposes gov —a ernment’s of a promises form pay, and denomination de for circulation as signed maintain that-an currency. They article for some may uses money or for at the will of all, that, that creates power it; one sort of be- money'may duties on good pay imports another to for pay public one lands; fhat sort be a tender for all may debts and another debtsmf certain kind or amount, determine. this view was the mind Probably when act of framed, th.e and suggested “ shall words, the. be lawful it was money.” Perhaps tho mind of statesman who then had of the national charge who issued the finances, tender notes, and after- who im wards, before the vindicating said: policy people, these circumstances “Under I coined the credit of the nation.”* this, derivation of the required power,

But. though sup reason and' ported by strong has re respectable authority, ceived less-of professional and favor than the judicial deri vation from the “to- make all laws which shall be ' necessary proper into execution.all carrying powers vested the Constitution iii the by. the United government or in States, department officer thereof.”† the admitted which the Aniong act-in powers question -believed to aid in are the powers executing, borrowing on credit of the money United States, war, declaring ar- suppressing''’‘insurrection, raising supporting and_of mies, providing maintaining navy. to borrow carnes with it the to -the money give an of the debt thus and to created, leqder strengthen evidence the loan with it the more at- adjuncts incidents making in the.market. And it tractive is'one of these incidents evidences of the debt shall offices perform man and citizen, between between man. 8. § 1, Hon. Art. Chase, Louisville, Ky., S. P. at † ' 523 Cases. Tendeé Dec. 1870.]

n constitutionality. of the support argument Attorney-General’s The of that the value has insisted on the other side Counsel circumstance notes is' not increased by treasury n a com- well are tender. One say might they a new in value is not increased modify opening article, are for an more uses there for it: .market The. in demand notes are is value. A bank whose greater credit in better many .purposes being eq'ual) (other-things to the than whose notes will do fewer services holder. one when its credit is better promises United States The will such was will debts than when not. least At pay on from ques whose judgment Congress, judgment is no tions of there expediency appeal judiciary. ” “ Con- Whenever the extent auxiliary powers of most restricted is in those who take the gress controversy, habit view are in the following paragraph quoting The State Marshall, J., Maryland: C. v. McCulloch “ n of the. let it be within scope Let the end be legitimate, which Constitution, which are and all means appropriate, end, are not to that which prohibited, are plainly adapted Constitution, are the letter and spirit consistent constitutional.” Marshall, J., C. rather assumed, inconsiderately,

It'is be un within this description all means not held coming v. the fact. In United States Such constitutional. . “ are, means which Fisher,* was, fact, his any language the Consti a the exercise of power granted conducive another, case of Mc opinion In part tution.” -was, his Maryland, language v. State Culloch words are the end.” These means calculated produce than the first quotation. restrictive less rule let there us to that apply quotation,

Returning denied has not been matter in hand. It laid down to the and' that the ends currency issued,, here tender, it was made a for which legitimate could Insurrection within the Constitution. scope armies could not raised and notbe.suppressed, supported,

* Cranch, Ct, Legad The Attorney-General’s argument support constitutionality. could not be navy provided’and maintained, without This court currency. it within the un has’pronounced disputed power provide for the currency of country notes.* There is consisting largely treasury no that the means in pretenee question prohibited. (cid:127) is But it affirmed with confidence thаt the means are not consistent with the letter and of the spirit Constitution. The means consist in the issue of the notes as a currency and in the them to the faculties^of imparting dues paying to and aud of it government, tender. If is with the consistent letter and spirit Constitution to issue these notes as a therii currency, protect a against rival held be authorized currency (which.is case of Yeazie and to them of Bank), give many ordinary it faculties is difficult to see how money, the letter aud of the Constitution are violated when spirit another of those’ faculties them. given which we opponents maintain most lay stress of C.-J. Marshall’s part definition of the “

allowable means which describes them as appropriate end,” to the adapted of a plaiuly issuing paper .That on the credit of. the United States was an currency .appro- means of adapted’ priate plainly maintaining gov- ernment insurrection is hot during questioned. That should, law, be made to do 'most of currency even as the term offices is used in the money, money” seems to be Constitution, admitted But constitutionality.' further, step investiture of go complete .this the attributes of with our friends on.the currency money, side think carries other us.beyond region “appro- - means.” priate plainly adapted Soliciting judicial adverse to that of the opinion legislature on-a-question adaptation .moans, into finan- appropriateness they go aud discussion, cial that the usefulness of argue the treasury increased of but not the of question congressional power, question If wisdom. issue a congressional Congress may currency as an means ends, to lawful it in its appropriate discre- may, tion, to that or all currency few, of the faculties give many, of money.

The main of this is that it objection mode reasoning far. So it It leads to the does. very conclusion that goes a. has deal of A Congress great power. government without who Tbe men made this contemptible. govern- ment intended that it should have to main- strength enough own tain its existence, and to ends for which accomplish the The it made. of a is in mainspring that makes the laws, and-there the department Constitution sufficient has for national wisely reposed power exigencies. In relation to and contracts, the money Constitution is.jealous States, of but shows no of Power in jealousy Congress. is as little liable to abuse as elsewhere. Of there is a of course, abuse of possibility imperfection man; and an a claimed on the argument against power, an this possibility, ground argument against govern- ment. state or can Every national, do infinite legislature, harm within its trust, keep constitu- abusing yet -.[Sup. . constitutionality. support argument Attorney-General’s

The mis- if session, at disposed limits. tional Congress, the exercise to misery by reduce the could country chief, declaré It could pernicious and undoubted powers. express But these taxes. great could It impose oppressive wars. ruin. to the country’s exercised have never been We powers have, shall continue sufficient and I we had, have hope the members and accountability in the character safeguards their whom on people and their interest identity the abuse of stand The same against safeguards laws bear. the auxiliary powers. after nine that now, other side on the says counsel

The is manifest that-there in war and peace, experience years’ notes the treasury faculty nowas necessity giving that such is the lesson tender. Without admitting of legal constitutionality I must deny of this experience, events determined can be subsequent an act Congress n toits passage. if it shall is constitutional sta-tute which A ill,"would shall work be' if it well, unconstitutidnal work meant to counsel The probably lay legislation. "novelty of his is base- such rule. Yet argument no part down This be decided such a rule. ought without question less have been decided it would now as Constitu- has a choice means, variable. Where is not tion affected the correctness its action cannot be the validity itsof choosing. judgment incorrectness felicitous counsel Mr." quotes expression Opposing the incidental principal power ought Clay, to each other.” This doctrine contravenes no be congenial There is a of our coin- kinship between part argument. and the tender. making money legal ing a between the andthe There is kinship borrowing money aof made valuable invested with currency issuing by being faculties, in evidence all the of that money, borrowing, a between armies There is kinship supporting paying in a valuable And so' on, the soldiers currency. through list of services which this has -currency good per- long Mr. is formed, the required by Clay abundantly congeniality manifest.

Dee. 527 Attorney-General’^ argument in support constitutionality. of' Webster also tbe on

Mr. counsel quoted by other he and it is true that side, himself expressed very emphati- to make power cally against paper legal, ,to tender. that is due Admitting great respect opinion of that eminent but infallible man, not I am at' to liberty that the authors of the in act had an suggest question experi- ence in necessities which was public him, to and. wanting that his inexorable that can be no proposition legal there tender in this and silver is country gold clearly wrong. This would forbid the use in a metal' proposition coinage.of than or silver to the adapted gold .better purposes coinage, should such a metal be discovered. We not all know that bowels of the earth. The of such a discovery metal would.not'be than the stranger discovery gold fields of California.

The counsel from the in quotes debates the Federal Con to vention that 1787 show members of that body (cid:127) to tender. The opposed making paper legal very-quota- that the tions members considered prove that'the to- power of credit emit bills involved the to make them a power and hence tender,- struck but the draft of the Con of. stitution emit to bills. it is But no uncommon words of a constitution experience or statute in their found, fairest to interpretation, more than import authors their It is distinctly designed. man, given when all constitution, to foresee the cases to which framing the conferred will powers extend. And properly this very matter, bills notwithstanding of credit emit out, was struck court has held exists; does it not exist that in why,-then, to it?* supposed belong

The counsel that not says much inconvenience wn'll be caused debtors tender act invalid, holding because'most of debts been 1862 have existing already effect, is, notes. This those paid treasury say dark, creditors who trusted the hours, that * Elliott, Legal 528 Tender Cases. constitutionality. in of the Attorney-General’s argument support a to declare confidence; tho victims of foolish selfish embarrassments, the most

that, future national in will will best. The decision which he desires men come out and disfavor the favor the churls patriots. also in

It the decision v. Hepburn been urged has. be held final under the of res should doctrine adju Griswold But cir-' dicata, merits of that decision. independently7 the absence of court as as lessened now,* cumstances, large the force of that of decision, induced portion great desire a reconsideration of the ques: legal profession tion. Moreover in that case the of question validity act, debts contracted after its passage, and a discussion of this involves decided, was question Indeed the whole this doctrine of res subject. adjudicata inasmuch as counsel, position opposing against has court, present by ordering argument, adjudged is still the question ,opeu. 1871, first of cases,

On the both the May, judgment mentioned in 11th was Wallace, 682, already p. affirmed; 3d, targe, of March By (12 794), act 1863 Stat. at the court was ordered members; being By July of ten member then added. consist now act 11 23d, Id. fix judges Supremo 18GG the number Court (14 209), States,” &c.,.it vacancy enacted no office of of the United was “that shall justice by appointment be filled until the number of associates associate six, of a Supreme be reduced to and thereafter the shall consist shall Court justice justices.” By (16 and six associate an 1869 April, act 10th chief December', 1869, to take effect from tho first was en 44), Monday Id. it associates, justice that the court of a eight acted dhief should.consist an additional purposes appointed tho this.act there should be Griswold, Hepburn v. court in tho judge. opinion stated Wallace, case, 27th, there 626), decided conference November (8 was bench, justice on being eight judges associates) then chief and seven (the them, number to which court had been reduced. One the.lowest tho Grier, February 1st, resigned judgment Hepburn Tho v. Justice 1870. 7th, February announced from the Griswold was bench and entered 1870. 1870, Strong appointed 18th, Mr. was and Mr. February Justice Justice 21st, Bradley 1870; argument March present and the order for the nine, by, argument.itself before, made and the as consti heard the court of tuted the act 10th April, Dec. of ihe court.

Opinion JUSTICE, NELSON, CLIFFORD, the CHIEF JJ., FIELD, dissenting. which time, the 15th order

On January,-1872, —till the (cid:127)convenience .some of the dissentient members promote court, the matter had been deferred, the'opinion or court, concurring opinions dissenting and different Justice Associate deliv- Chief Justices, ered.

Mr. STRONG delivered the Justice court. opinion these cases are the questions controlling following: Are the acts of known as the tender Congress, аcts, legal when constitutional contracts made before their applied and, are valid as to debts passage; secondly, they applicable since their contracted These enactment? have questions been have received elaborately argued, they from the that consideration which their court de great importance- ' would be difficult mands. It- to overestimate the conse must follow7our decision. will quences affect They of .the the entire business and take hold of the country, pos sible continued existence of the If it be government. held! has no court constitutional power, iu circumstances, under any to make- emergency, tender for notes a of all treasury legal the‘pay.ment debts (a. possessed by ’power confessedly every sover independent other than the United eignty States),'the government those means of without self-preservation which, all must in certain admit, become may, contingencies, indispensable,, called, were not when the even if acts of now they w7ere'enacted. It is also clear that if qnestiou we”hold the acts to debts applicable invalid incurred, transac have taken since tions which their place enactment, our de cause, must thq cision throughout country, business great distress, widespread rankest derangement, injustice. The debts which have'been contracted since 25th, February far doubtless, 1862, constitute, greatest of the- portion ' indebtedness of existing country. have They been con in’ tracted view the acts of Congress declaring treasury xii. vol. of the court.

Opinion in reliance that declaration. tender, there is no well-founded And to admit of question. obvions constitutional validity bo made between-the distinction a Nor can it be when that, questioned na investigating ture and extent of the conferred powers by Constitution it is to in view the indispensable Congress, keep objects - for which those were- This is powers universal granted. rule of statutes, construction alike to wills, applied contracts, aud If constitutions. of the instrument general purpose is ascertained, the its must be'con language provisions strued with reference to so as-to subserve purpose

* 4 Binney, Crunch, 123. 6† court.

Opinion of the in can the intent of the framers of the it. Iu no other way And there are reasons more strument be discovered. urgent the ultimate purpose powers to examining looking there are iu a constitution than conferred construing by We do not in a contract. to find statute, a or a will, expect It is brief com details. aud constitution.minute necessarily outlines, tlie It up prescribes prehensive. leaving filling In Martin it was Hunter,* be from the outlines. v. deduced deals in lan said,-“The unavoidably Constitution general suit the did not It purpose people framing guage. liberties of our for minute provide charter great or to declare means which of its specifications powers, by be carried into And ivith those should execution.’.’ powers was it said Chief Justice by Marshall, clearness singular “A constitution, to Maryland,† The State McCulloch v. of which detail of all the subdivisions contain an accurate admit, the means which its will powers great execution, would be into partake pro carried and would be code, of q scarcely embraced lixity political never be mind. understood human It probably would nature, therefore, its Its requires the public. its marked, shoirld be des important objects outlines groat the minor which those compose ingredients ignated, deduced from the nature of them objects be objects if are correct -principles, If these proper selves.” which the manner in Constitution is views of conferred must be understood, upon Congress the pouters for a each means other, as related to all. regarded of a a constituent Each is but system, end. part common end-for the ultimate No single -power of one'whole. in a It may, the Constitution adopted. very treated as means for sense, accomplishment proper but that itself a means de object, object a subordinate an ulterior Thus purpose. levy signed taxes, value, to coin regulate and collect armies, or for and maintain provide raise support * Wheaton, 326. 4 Id. 405. † Dec. 533 1870..] Lesal Tender Cases.

Opinion the court. for the navy, paramount which object, instruments was to establish a within its government, sovereign sphere, with self-preservation, union capability thereby forming than that which existed under the old Con perfect rqore federacy.

The same be asserted also all the nou-enumerated' included “to make powers authority expressly given all laws which shall be necessary proper carrying into execution the vested in specified powers Congress, all other vested the Constitution in the powers govern ment of the United or in or officer department States, It to know what those thereof.” impossible non-enume rated and what is their nature and are, powers extent, with out were intended to considering subserve. purposes they noted, must reach Those it the mere- purposes, beyond of all intrusted to execution aud powers definitely mentioned detail. embrace the execution of all They other vested Constitution powers government iu States, United or officer any department thereof. was intended to confer It tii-e certainly upon, government Chief self-preservation. Said Justice iu Marshall, power'of TheBank “America has v. Virginia* Cohens to be, chosen a nation, respects all many many purposes, these all is.complete;’for these purposes-her (cid:127)government it is can It these supreme. then, effecting objects objects, control individuals or governments within legitimately added, American He same territory.” ease: “A’ is framed aud come, constitution for agés designed as. near as can to approach'immortality mortality approach . cannot Its course It is it. always tranquil. exposed and its framers storms and must be Unwise tempests, states it, men if have not as far as indeed, provided nature means will permit, self-preservation .the n encounter.” is sure to That would perils appear, then, unreasonable be a most construction of the Constitution n denies created- it, right

* Wheaton, Opinion the court. its for not means, necessary prohibited, freely every

employ the fulfilment of for acknowledged preservation, last was the hold, by duties. we Such given right, means first article. The of its clause of the section eighth and author- clause, to in that or referred instrumentalities nature of defined. In the ized, are enumerated or not But enumeration and were impossible. specification things to the discretion of were left Congress, subject only they neces- and be that be not prohibited, restrictions they into execution enumerated sary proper carrying in the- and all other vested powers powers given Congress, or the United or States, any department government officer thereof. not the' is here it is to be observed it indispensable

And claimed for the Federal existence of power any in the words of the Constitu- it can found that specified one traceable to some tion, clearly directly be deduced Its existence fairly powers. specified defined, substantive more than one powers expressly them combined. It is allowable to to- or from group them all number of them and infer from any gether a treatment of claimed has been conferred. Such its own This is provisions. the Constitution recognized by in its writ of well illustrated respecting is language The of that habeas to.suspend privilege corpus. it be deduced from is not nor can any writ expressly given, Yet it one of power. provided particularized grants the writ not be except that the shall suspended privileges defined This is no in certain express grant contingencies. It is But shows irresistibly restriction. power. privi- somewhere Constitution suspend or more some one the writ was cither by granted, lege all combined. them or by specifications power, the" were-understood And, people important powers it, have been created by who Constitution to adopted incidentally and not included enumerated, powers the amendments. one of those shown enumerated, in the conventions The first ten of these were suggested Dec. of the court.

Opinion States, at the first session of the proposed first Con- before was made of a gress, any complaint disposition powers. assume doubtful preamble resolution '“ recited that the submitting'them conventions adoption of a number of the States at the time of their had, adopting order, Constitution, a desire, expressed prevent misconstruction or abuse of its that further declara- powers, and restrictiveclauses should be added.” tory This amendments, origin significant. They tend who;, that., to show of those plainly judgment there Constitution, adopted it, created powers neither nor deducible one expressly specified from'any speci- fied to it power, out of alone, ancillary grew of conferred tlie or aggregate powers upon- government, out of the Most of instituted. these amendments sovereignty are denials not been granted, had expressly and which cannot be said have to been necessary proper for execution other any carrying powers. Such, .into ex- is the laws ample, prohibition any estab- respecting lishment of the free exercise religion, thereof, prohibiting the freedom of or of the speech abridging press.

And it is of to observe that importance has often Congress exercised, without are question, not powers /that expressly' nor to enumerated given ancillary Powers single power. are thus exercised what are called in his Story Judge on Commentaries Constitution, the. resulting powers, arising from the He aggregate powers instances government. to sue and make contracts. others right Many .the might The oath required be. officers of bylaw given. a is one. So is or a building capitol presidential so also is the

mansion, and code. This last is penal worthy is of brief notice. authorized Congress expressly pro- vide for punishment securities and counterfeiting the United States, current coin of and to define and punish and felonies committed on the seas and piracies offences high also, the laws nations.” It is empowered de- against of treason, clare the is punishment provision made for This is 'the extent of impeachments. crime punish

Opinion 'of the court. It be expression conferred. argued expressly might all other an exclusion of limited of those powers implies Such is the of criminal subjects legislation. argument is authorized It said because cases. present a its value it cannot declare coin ny? money regulate make and silver to other than thing gold act 30, 1790, of April tender. Yet Congress, by,the for the more effectually provide punish “An act entitled States,” United and the crimes of certain ment against-the 1825, 3d, of March defined and act provided supplementary than of a class crimes .other large punishment and some of the Constitution, in the pun mentioned those not in aid of any single ishments manifestly prescribed that this was doubts No one rightfully substantive power. has been affirmed thus exercised and the done, This case shows States v. this court United Marigold.* of an ex aid to execution exist as au power may there or an of such powers, power, aggregate though press the same another express relating part power'given less but extensive. illustration this may Another subject in connection with the census. provisions found respecting orders an enumeration hi’ The Constitution free*'persons different States' ten direction extends every years. Yet has further. directed an.enu no repeatedly not in the of free meration States but free persons only an enumeration Territories, persons the collection statistics sex, (cid:127)persons respecting age, Who the do this? questions power production. the whole and of con Indeed history government has exhibited use of wide very legislation gressional even in times of discretion, the absence of peace any in the selection of the emergency, trying necessary effect the carry means into for which great objects proper framed, and this discretion has the "government geuer or, if been sanctioned this questioned, unquestioned, by .ally an when true has been attempt court. Tlii? * Howard, 9 560.

Dec. 537

Opinion of the court. made to execute but power single specifically given, equally true when the means have been adopted appropriate execution, not of a single authority, powers of.all created by Constitution. Under the to establish post-offices and has post-roads for Congress provided carry the mails, ing theft letters and mail punishing robberies, and even for the mails to transporting countries. foreign Under the commerce, has regulate provision been made law for the by improvement .harbors, establish ment of observatories, erection of break lighthouses, waters, buoys, enrolment, construction registry, and a code has ships, been enacted for the government of seamen. Under the same and other over powers the revenue and the for the con currency country, venience of the and internal commerce, treasury corpora tion known as the United States- Balde was created. early itsTo capital subscribed of its stock. one-fifth But the one, was a corporation business for private doing its own Its was a profit. constitutional exer incorporation cise of for no other reason than congressional power that it was deemed to be a convenient instrument or for ac meanv one or more of the ends complishing the govern ment was established, or, article, language first already quoted, necessary proper” into carrying execution some or all vested in the powers government. if existed, was Clearly not a direct and necessity, one, obvious Yet this court, v. McCulloch Maryland* ruled that in unanimously bank, authorizing Congress had not transcended its due So debts powers. United have been declared acts States entitled to by over debts duo to other creditors, and priority payment this court has held acts warranted by .such Constitution.†

This is to show from the earliest how, enough period as a nation, 'our existence conferred Con- powers stitution have been construed this court by Congress whenever such action has been called in ques-

* Wheaton, Cranch, Blight, 416. Fisher v. † CL Legal 588 Cases. Tender court. Opinion of the clause authorizing the true meaning tion. Happily of all laws proper carrying the enactment necessary conferred Congress, into execution express powers the United and all other vested powers government has since its officers, States, long any departments by this court, been settled. In Fisher v. Blight* speaking Marshall, “it would that in it said Chief Justice construiug if the and would endless difficulties be incorrect produce law authorized be maintained that no was should opinion a to effect to was not indispensably necessary give which various be Where adopted systems might power. specified each that said with to respect it for that purpose might the end be obtained because by it not necessary might was “ “ court, said must possess this means.” Congress,” other must to use means, and be empowered the choice the exercise fact conducive to of.a power means is to Constitution. pay government granted and must be authorized to use means debt of Union effect itself most that It eligible object. which appear to make remittances bills or has, consequently, right take which will and to those render otherwise, precautions, safe.” It was in this as “we case, have the transaction that law to debts due remarked, priority already giving was ruled to constitutional lor the United States an that to be means reason appeared eligible the debts of the Union. to enable pay however, Maryland v. was, It McCulloch fullest of the Constitution clause consideration given and construction adopted auxiliary powers, granting true ever since been mean has accepted determining We shall now over the there trodden. go ground ing. and, indeed, familiar to It is profession, Suffice it to case it was whole country. say; finally that in the Constitution to gift by settled laws enact exe authority proper” necessary jo created it, of all powers cution necessity spoken

* Cranch, Dec.

Opinion ,of court. one. the con as an absolute On of not to understood is of held that the sound construction the then this court trary, that the national dis must allow to legislature Constitution which to means the with the powers cretion respect execution, which will enable carried into are to be confers duties to it the the assigned high body perform Said Justice to the Chief most people. manner beneficial “Let the court: opinion Marshall, delivering it within the the Constitu let scope end be legitimate, which are which are all means appropriate, plainly tion, not which are consist end, to that prohibited, adapted Constitution, are letter and constitu with the spirit out with The ease also marks admirable tional.” precision It declares when the of this court. law province and is not calcu prohibited really by Congress) (enacted intrusted to the to effect objects lated any govern here into to undertake ment, inquire degree line would be circumscribes the pass necessity tread on department judicial legislative ground. was all This disclaims pretensions such a said) (it court It these necessary is hardly say principles power.” universal assent. Even v. are received Hepburn Grisw of the court old* both majority minority concurred doctrines of McCulloch v. Maryland as sound accepting Constitution, of the in their though disagreeing expositions application. of constitutional construction these rules before us,

With anat period history early government, settled and not even now universally accepted, doubted, hitherto decision of the a safe we have be- right questions to. guide can we hold acts us. Before' unconsti- fore were tutional, must be convinced not we they appropriate means”conducive to or or means, any .execution or of not government, Congress, powers appropri- we are ate in degree judges degree any (for ap- that, wc hold were must they prohibited. propriateness), 8 Wallace.

Opinion of the court. This us brings whether inquiry were, when en- acted, appropriate instrumentalities for into carrying effect, any known executing powers or of of. Congress, department of the government. to this Plainly inquiry'; a consideration of the time when they enacted, and of thе circumstances in which the then stood, It is important. not to be denied that acts bemay adapted to the exercise of lawful power, to-it, appropriate seasons of which would be exigency, at other inappropriate times.

We do not to dilate propose at length' circum- in which the stances when country placed, to make attempted notes a tender. treasury They ’ of too recent occurrence justify enlarged description. to.

Suffice it that civil war was then to'saj' which seri-. raging threatened the overthrow of the ously and the government destruction of the Constitution itself. It demanded the navies, ánd armies and support and the equipment large an 'extent the beyond employmentof money of all capacity Meanwhile the sources ordinary supply. public treasury was and credit of the if not nearly empty, government, tension, stretched to had become exhausted. its utmost nearly their means, institutions had advanced! largely Moneyed of. had been and more could of them. They expected Taxation in- was compelled suspend specie payments. oh the in- even the interest debt already adequate pay await income of addi- curred, and was it impossible and The was immediate tional pressing. taxes. necessity (cid:127) was then due to the soldiers was There unpaid. army a score of millions of dollars. The the field requisi- nearly ex- tions from War supplies Navy Departments was the current over ceeded fifty millions, expenditure The entire of coin million one amount day. per hands, that in as well as that in country, including private institutions, was insufficient to need of banking supply had it all into months, three been government poured credit we had none. We treasury. say nothing Foreign of business trade, overhanging paralysis gener- .the Dec. court.

Opinion of tbo confidence in the ability which threatened loss of ally, existence, there- maintain continued its government national destruction remaining complete credit. that such a time and in such circumstances

It at was called to devise means for maintaining army navy, supplies money securing large needed, indeed, for the and, preservation government It was at such a time and created Constitution. were an that the acts

such tender passed. emergency legal if were certain else would have it that Now, nothing sup- that the absolute necessities of the plied treasury, nothing have else would enabled the to maintain its government else armies that would have saved the and navy, nothing and the Constitution from destruction, while' acts could one be bold would, enough assert ? Or if these powers Congress transgressed can results, did work these enactments be maintained now not for end, they appropriate legitimate end,” in of Chief Justice Mar- adapted'to language did such is not to he shall ? That work results doubted. faith revived the some- drooping people; Something aid the government’s immediately thing brought euabled the suc- nation, resources something of'the and the war, cessful preservation prosecution What if not the fender life. was it, national enact- ments ? if it be conceded that some other have means

But might the for chosen of these and been accomplishment legitimate ends, the' does weaken the concession necessary argu- now, is after the nine ment. It lapse years, urged has that when the notes without emergency passed, treasury clause issued, the have been that the legal might of the thus have been necessities government might sup- it is inferred there Hence was no for plied. necessity giv- issued to the notes the ing capability private paying is this mere debts. At best But it conjecture. admitting it to be what does more than true, prove? Nothing .Ct [Snp. of the court.

Opinion end, had choice of means for each legitimate appropriate, end, to that adapted though, perhaps, different it What then? Can this court degrees. say to have one rather Is it our than other ? ought adopted to decide the means were province selected beyond constitutional think because we Congress, that other means to same ends would have beeu more assume appropriate efficient? That would be to equally and. rules for legislative power, accepted disregard the Constitution. The of the construing degree necessity any enactment, or relative congressional degree if it have appropriateness, any appropriateness, consideration in not here. Said Chief Congress, Justice Marshall, v. McCulloch Maryland, stated, already the law not “When and is prohibited, calculated really intrusted to effect objects government, undertake here to into the of its inquire degree necessity, be to the line which pass would circumscribes the judicial and to-tread on department, legislative ground.” It is view, our however, that plain none those meas- ures which it is now have been conjectured substi- might tuted for the tender acts, could have met the exigencies time case,,at when those acts Wo passed. said have that the credit of the had been tried government utmost to its endurance. new issue of notes which Every had more to rest than nothing credit, government must have it more more, it paralyzed rendered in- difficult to creasingly field, or the keep army navy It is an historical fact that afloat. and insti- many persons refused to reeeivd and those tutions notes that had pay been and even head of issued, treasury represented the new issues necessity making tenders, rather, declared avoid impossible neces- men The vast body service sity. 'military citizens who had farms, left their their work- composed and their business with families debts to be shops, pro- ' The vided for. could not them pay nor could ordinary notes, their treasury debts discharge 543 Legal Dec. 1870.] Cases. Tender of the court. Opinion needed, some- more a

with currency. Something such could And no one uses of had all the money. that thing notes in common payment to take treasury be compelled was re- ultimate redemption and as the debts, prospect much to it is not too they say and contingent, mote before the in the market war long have must depreciated Mak- of the Confederate States. as did closed, currency and it use, them a new tenders gave the notes legal ing is in that the value of to show things no needs ‍‌‌‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌​​‌​‌​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‍argument which be they may applied. to the uses proportion to enact not authorized conceded It may even a because end, in furtherance merely laws legitimate make the or because are useful, they government means relation between the be some There must stronger. end; some appropriateness and the adaptedness created the Con execution the into powers laws to carry has effective dn a statute But when proved stitution. it is not too much confessedly existing,

execution powers had to the exe have some that must appropriateness say The rules of construction heretofore of those cution powers. demand that the between the do not relationship adopted, and immediate. means and the end shall be direct Illustra found several eases above cited. tions of this bomay the United States, a Bank of The charter of priority debts, over due the to debts private given loans from taxa of Federal State liability exemption a few of tion, given.' many might v. Fenno* illustra case of presents suggestive Veazie Bank cent, a tax of ten on State bank notes in There per tion. constitutional, not because it circulation was merely h^ld w,as as an revenue, means of instrument raising put existence such a circulation in of

Opinion court. .the banks; or notes of National notes, and that it cannot be secure bene- questioned Congress may constitutionally fit such a to the currency people by appropriate legisla- can tion. It was said there 'be no question power credit; this to emit bills of to make them receivable in to use itself; debts to fit them for payment those who see fit to use them the transactions all by of'commerce; to make-them a uniform value currency and convenient for circulation. description, and useful Here substantive to tax was em- allowed to be for It is to see not ployed improving currency. easy if State notes can be taxed bank out of existence for why, United States notes more indirectly purposes making convenient and useful commercial the same purposes, end secured them a may by directly making tender. then, which made

Concluding, provision treasury to intended confer that upon Congress general' over power has which an been currency always attri acknowledged other civilized bute nation sovereignty every than our when considered in own, with especially .connection which denies other'clause to the States the to power coin of credit, emit bills or make money, but anything gold tender in silver coin a of debts. We do not payment assert now, there are some considerations these- touching clauses which tend to show that if are to- any implications be deduced from an them, (hey rather than- enlarging character. The Constitution was restraining intended to frame a as from a government or com distinguished league in some supremе pact, government particulars over States It was to the same people. provide designed currency,, a uniform value in all the States. It was for having th is to coin power its value money regulate reason- conferred the Federal was while the same- government, as the as well to emit bills of credit was with power power from the States. The drawn States can no declare longer its what shall be value. money, Whatever regulate power there is over the is vested in If the currency Congress. what to declare is not in it is money Congress, annihilated. This indeed have may been intended. Some to were extin- usually powers sovereignties belong Howard, States v. 9 Marigold, United xn. VOi. the court.

Opinion of left inference. was not to but .their extinguishment guished, was intended that when it if not in cases, all, gov- In most should such, as ernmental commonly acknowledged powers, in the Federal in the States exist, govern- both cease well to United both, as denied ment, it was expressly when And States.- generally, as to the States individual. denied to the States only, was one of such expressly powers more the Federal power it for the was purpose rendering if asked, be it then, exclusive. Why, and: complete as well new government, the. was prohibit design over the currency States, as to general was such framed, when the Constitution had the States extended, it the new government, denial not expressly view this it .be Iii argued was to the States ? might in what it is considered brief when much force that terms, how sensible the Constitution speaks, comprehensive arise have been that framers might emergencies must more scarce than metals might when (then precious now) the necessities of the prove inadequate .is it demands the. remembered people —when in use in the was almost States exclusively paper and when evil the medium of the.gteat sought exchange, value want of uniformity remedied was the current that the say, .we argued, giffc-of of money, might the value under- thereof,-was coin to money regulate over power currency, stood conveying general States, and which they which had belonged power it would construction, said, a be Such might surrendered.. other sub- fo the mode of construing in close be analogy never been to have Congress. They stantive powers granted exist if could not construed literally, on war is conferred were. Thus power carry they the- The “declare war.” whole system power to estab- mails is built upon power transportation The eom- power lish post-roads. post-offices regulate n extended far the letter of the has also been meree beyond a strict literal construction of Even the advocates of .-grant. the value thereof,” .the “to coin money regulate phrase, Dec. of the court.

Opinion the material to coined as defines be while’ insisting discre- to concede to metal, large compelled Congress does not The Constitution tion all pther particulars. coined, metals be ordain what prescribe when shall at metals, coined, value of the correspond legal in the market. does it intrinsic value Nor all with their a declare to be even affirm that Congress may anything legal of debts. tender for the Confessedly power payment coined, coins, the value of and of money foreign regulate than once in first More not exhausted regulation. been without our has the history changed regulation it, and it seems denial of the to.change power Congress alike to determine what metal been left to have and how far its coined, value, shall be purity, statutory from time to with the shall time, correspond, money, of the same metal as bullion. How then can market value to coin its value, power regulate grant so also unrestrained, terms liberal made in coupled of all over the denial to the States currency, asan de- implied prohibition to.Congress regarded against if such Legal 548 Tender Cases. court, of the

Opinion their The argu made after to contracts passage. applied two n effect, that the acts do, ment assumes things,, first,— second, contracts, impair obligation action which indirectly may is from taking prohibited ac can be these have that effect. Neither assumptions a who became acts, debtor, under the is true that It cepted. his debt may passed, discharge before they such them, and the is creditor compel authorized the notes by his claim. But such notes lable to receive discharge of the contract is weakened wdiether obligation thereby the con after what was can be determined only considering silver, was not It duty pay tract gold obligation. law at the time when kind of by 'money recognized nor was it made, pay equals contract -was duty money now of contracts intrinsic value the market. speak (We not contracts to some pay specific pay generally, of the cred expectation defined species ally money.) the debtor have been that itor and anticipation of coined would be contract payment discharged of one the con but neither the metals, expectation party nor the fruits,, its other anticipation tract respecting n constitutes There dis well-recognized obligation. between, the to a contract expectation parties tinction it not so the it.* Were duty imposed expecta results would be eu-_ tion of always equivalent a’bihding But the of a should follow. they obligation gagement the law shall is to that which contract pay pay money If is to be made. as-money when'the-payment recognize and we do this, settled decision there is anything No one ever doubted understand it to controverted-† dollars, 1834, thousand contracted before a debt of one hundred coined after that one year, could paid by eagles than contained .no more ninety-four eagles though gold made, as were coined when the contract .was and this, such Austin, Ellis, 671; Dunn Apsden Adolphus Sayles, 5 & N. S. Ib. v. v. Landis, Wright, 685; 426. Coffin v. Davies, 28; Potter, 81, Barrington Dyer, b., 67; fol. Faw v. Marstel v. † ler, Cranch, . (cid:127)549 Lee.-1870.]

Opinion of the oo.urt. not of the intrinsic value of the coin, but because because of its value. coined after were not eagles 1834,' legal until were authorized law, and had been money they by they coined a law before, without their value, fixing legal could, no more a than uncoined have.paid bullion, debt cotton, or wheat. contract of Every payment money, to the simply, subject constitutional of necessarily over whatever that currency, power may and the be, is, parties therefore, assumed obligation with reference to that isNor power. A cove singular.

nant for is not broken, nor is its quiet-enjoyment obligation the land by impaired government’s taking granted virtue, of -its eminent of domain.. The right of expectation the covenantee be lie not disappointed.- may may enjoy he made and.the anticipated, covenant grant undertaken subordination to the paramount right have been asked We whether can government.* Congress a declare that contract deliver of quantity grain may satisfied tender of less quantity. not. Undoubtedly is a false But this There is a wide distinction analogy. be tender tween of .a quantities, specific articles, and a tender of values. Contracts for the delivery specific articles to the domain of State exclusively belong legislation, while contracts for the are payment money subject at far least so as relates to the authority means Congress, They lawful payment. engagements pay United States, empowered the. cannot, It therefore, be maintained money. regulate acts impaired obligation con tracts. asserted it be not, can truly Congress may-

Nor action, indirectly obligation contracts, if impair be meant -rendering fruitless, or expression contrasts fruitless. it may, Directly confessedly, partially by passing, as well as future act, past transac- bankrupt embracing Miffrin, Brown, (Pennsylvania), 75; v. 2 v. Dobbins Jones Workman Casey, 362.

Opinion of tho court. tions. This is contracts So it obliterating entirely. may relieve from their parties apparent obligations indirectly It war, a multitude of even in or, ways. inay-declare peace, acts, or direct an All such non-intercourse pass einbargo. . and must measures operate seriously may,, upon existing hinder, but relieve the contracts, and merely parties may then, is, contracts It entirely performance. to such be exerted, that the may clear powers though exertion in one such case to annul, the effect of Aud other cases to contracts. -impair obligation it is when answer this to true is no sufficient say is no exerted There the expressly granted. powers has no It warrant in the for such distinction. any ground of the docisions-of this We court. Constitution, for mere convenience of the to express are accustomed speak conferred But fact and implied upon Congress. powers those to the necessary appropriate auxiliary powers, described, are as execution of other pow.ers expressly singly or to declare'war, to establish uniform .is given are tho hot They laws on bankruptcy. catalogued, subject are last made, of them is no list grouped article, of the first cluse section eight granted all other same words in which powers granted Con this court has no distinction'' And such recognized gress. now An con as is suspends many attempted. embargo of others renders performance impossible, tracts yet has been declared enforce it constitutional.* law an to enact a is one directing embargo in time because auxiliary powers, existing only appropriate commerce, appropriate to carrying peace regulate it not conferred as a substantive war. power, on Though with the'Constitution; been to be in conflict has thought of contracts. indirectly obligation because impairs a calls for new discovery reading That Constitution. tender acts were then, the If, justly chargeable would not, contract obligations, they impairing Ogden, Wheaton, Gibbons v. Dec. court.

Opinion unless a different rule reason, forbidden, is to be applied them that which has hitherto from con- prevailed struction of other fundamental powers law. granted "intimated, But, already objection misapprehends nature and extent the contract of in obligation spoken As in a of civil state property society Constitution.. citizen or to the lawful de- subject ownership, subject so mands of the contracts must understood as sovereign, madq. to the exercise in reference possible the,rightful and no of a contract government, obligation authority the defeat can extend to of legitimate government authority. we allied have consider- been objection just

Closely is the us that the pressed upon ing argument' acts were of the fifth amendment, prohibited by spirit which forbids use without taking private^property public or due law. That just compensation process'd" provision understood as been to a direct has always referring only ap- not to consequential injuries resulting propriation, of lawful It has never the exercise been power. supposed have ór to inhibit laws any bearing upon, indirectly ' harm and loss individuals. A new an tariff", em- work draft, or Avarmay indi- inevitably bargo, bring lpsses; indeed, render viduals may, great property .valuable n almost They worth of contracts. may destroy .valueless. that, this, because of a tariff" But whoever supposed could a non-intercourse an act, not be or be or changed, embargo - war be or ? act of enacted, By declared June 28,1834, and value of a new coin Avas Aveight regulation gold six Avas about cent. taken per from the adopted, Aveight The effect of this dollar. Avasthat of each all creditors to a- loss. The debts then corresponding subjected cent, solvable with six less due than per became Avas gold them The before. result was thus required pay precisely what it is tender acts contended But legal worked. was it was ever with- imagined taking private property or out without due of laAV process ? Was the compensation that the ever new idea advanced coin was regulation gold of the fifth amendment? And has spirit against any Ct

Opinion of the court. one in faith avowed his belief that even a law good debasing the current coin, would taking by increasing alloy, It but private property? impolitic unjust, might co.uld be doubted? Other statutes constitutionality have, time, from time to reduced the of silver in quantity silver coin without of their question constitutionality. said, now, It is that the act however, of 1884 only brought value of coin more into nearly gold correspondence market, with its actual value in the or its relative value to silver. But we do not that this varies case perceive diminishes its force an The illustration. creditor who had a thousand dollars due him on the 31st day July, before .the act took entitled to day (the effect), thousand dollars of of the coined and fineness weight gold then of the The he was after, entitled existing coinage. day cent, ato six sum and in market less per weight or to' a smaller value, number of silver Yet he dollars. have been a man that, bold who had asserted because .would th-is, contract was or that obligation impaired, ivas taken private property without with- compensation out duo process of law. No such so assertion, far we was ever know, made. Admit was isit hardship, that is much less every hardship that.is uncon- unjust, stitutional; it would be an certainly for us to anomaly an hold act of invalid we merely because might think its harsh provisions and unjust.

We arc nob aware of else which been anything has ad- of the that the support proposition vanced acts wore forbidden either the letter or the spirit If, Constitution. therefore, what we they were, have en- deavored to show, means for ends, appropriate legitimate were not vested transgressive authority Con- gress.

Hero we but we will an notice stop; riiight briefly argu- ment presented position the unit support value must intrinsic value. possess argument is derived from the constitutional assimilating provision re- that, a standard of and measures to specting weights confer- Dec.

Opinion the court. It is to coin value. regulate money ring can no uniform standard of without said there bo weights of measure without or or wo length space, weight, can made a asked how uniform standard anything a itself no This is which has value? question value foreign acts before us. The do not at- subject a standard of value. "Wedo not rest to make paper tempt the assertion that their emission is coin- their validity upon of the value of nor do we money; or any regulation age, make which has no value assert that anything we do assert has is, What money. shall be,

enact that the promises pay government’s money in value to the for the time representative equivalent being, or to acts, determined of value by coinage multiples a standard of It is correct to value. speak hardly thereof. does not of it. It a contemplates The Constitution speak extension; or but value for that which has (cid:127)standard gravity ' dollar; acts-fix its unit as a an ideal thing. coinage silver or we a dollar a is, sense, call no gold thing a io a dollar. It There standard it. representative have never been of the denomination piece money might never was of a dollar. There coined until sterling pound we few if coins struck 1815, except reign Henry almost it has been unit debased, VIII, immediately yet then, a mis- is, It of British currency many generations. a stand- tender acts as either take regard fixing values, ard of value money 'making regulating which has-no intrinsic value. further, our remarks it will be But, without extending we the acts of hold seen ap Congress .constitutional tnade either after their contracts before or passage. plied Aveoverrule so much Avhatwas decided in In so holding, as ruled the acts unwarranted Griswold,* v. Hepburn far as made before so contracts they apply Constitution court, That casehvas decided a divided their enactment. a less than the law a court number of and having judges

* Wallace, 554 Legal [Sup. Tender Cases.

Opinion of Bradley, J,, concurring. then in existence this court shall have. These provided cases have been heard before a court, full have received our most careful , consideration. The in questions volved constitutional of the most vital questions impor tance to the and to the at We have government public large. been the habit of eases a consideration treating involving of constitutional from those which concern power differently areWe not accustomed hear them merely private right.* court, in the absence of a full if can be avoided. Even cases if we had. convinced only private involving rights, made we would hear a.mistake, another cor- argument ' rect our error. And if is no in courts unprecedented thing of last both in this resort, and in to over country England, rule decisions made. We this should not previously agree be done but in such a case of inconsiderately, far-reachiug as the convinced as we consequences present, thoroughly are that has not we its transgressed powers, regard it as our so to decide and to affirm these both duty judg ments.

The other raised in the case questions of Knox v. Lee decided in were Texas v. substantially White.†

Judgment in each case aeeirmed. Mr. BRADLEY, Justice : concurring I in the concur read, should opinion just feel that to add it was out of further on place anything subject it not for Ou a importance. constitutional great question it is involving powers proper it, consideration every aspect every bearing upon it, should he that no member of the presented,'and court should hesitate to his I views. do not express how- propose, ever, at into the to make subject such go large, additional observations me appear consider- proper risk,of at the some inadvertent ation, repetition.

The Constitution the United States established a gov- Briscoe v. Bank of Kentucky, Peters, 8 Wallace, 118. † Dec. 1870.] J., of Bradley, concurring.'

Opinion It. ernmeut, and not compact, league, partnership. In is called a

constituted It people. government. it is declared that section of Article I eighth shall have make laws which shall be necessary execution the powers, into proper foregoing carrying and all vested this. Constitution other gov- powers or office ernment Stales, United department attri- all the it was invested with thereof. As a government Article VI It declared butes of is'.expressly sovereignty. States that the and the laws of United Constitution, .the made under made in and all treaties pursuance thereof, law of shall be the States, of the United authority supreme land. the Federal contended-for, The doctrine so long States, and that the if States, was a mere Union compact the acts of the Na- chose, annul or disregard might secede from the Union at their or tional might legislature, had no and the General power government pleasure, Constitution, should be coerce them into submission to has overthrown. This and forever definitely regarded as it often effected the National had finally power, been before, been by overwhelming argument.

. but it The United Statés ouly government, is.a in this coun- and the National government, only government character It is invested with that has the of nationality,. try war, over relations all country, foreign power nations; and intercourse witii other and negotiations peace, It has which are forbidden to the State all governments. and all those over subjects legislation general jurisdiction which affect interests whole people sovereignty and which alike, and uniformity require regula- equally and measures, such as the laws, tions coinage, weights laws, the postal patent copyright bankruptcies, system, commerce; all which sub- and interstate lands, the public to the State prohibited gov- jects expressly impliedly insurrections, ernments. has as well power It- suppress as to and to invasions, arm, discipline, repel organize, into whole The Presi- call service the militia country. 'Legal Ct Cases.' J.,

Opinion Bradley, concurring. dent is with the with the invested .charged power duty to take care that the laws be executed. judi- faithfully has jurisdiction between the ciary decide' controversies between States, and their well as. citizens, as respective ques- tions of National concern; and- the is clothed government with guarantee State form every republican and to each of them invasion government., protect, against and domestic violence. For the into purpose carrying effect and these the other executing conferred, powers and of for the common defence and wel- providing general fare, is further invested with taxing its forms, all that of duties except on laying exports, to borrow on the National credit, to mon-ey punish crimes the laws of the United States and of against nations, to constitute courts, to make laws necessary into execution the various proper carrying vested powers or officer thereof. any department Such the character of the General being government, seems to a self-evident on that it is invested with propositi all those inherent and at the time implied powers which, the Constitution,.were considered to adopting generally as such, and as belong every government essential being ' to the exercise of its functions. If this be not proposition true, is true that the certainly government United has .States in the clause express last authority, quoted, make all sucli laws as inherent and im- regarded (usually as and plied) -miay necessary on the proper carrying, and constituted, vindicating authority existence.

Another clear that the proposition is, at time the equally it was, Constitution and had a adopted, time long . been, the most, all, of if not practice civilized governments, credit as a of employ public anticipating .means national revenues for of them to exer purpose enabling cise their functions, and to meet the governmental various to-which all exigencies that the .nations subject; mode of credit was public various employing different' countries, at different periods by agency —sometimes Dec. 1870.] Bradley, J.; concurring.

Opinion of bank, a national the issue of sometimes exchequer by bills bills of and sometimes by pledges credit* In had domain. this the habit prevailed public country, issu the commencement of century, from eighteenth credit; had and the revolution of bills independence ing means of similar achieved, been just degree, by great issued the Continental These bills bills by Congress. a of all debts made teuder for the

generally payment mer until, influence public private, English, at home, Parliament the issue of with chants bills prohibited This 1751, was first exercised in quality. prohibition colonies; New and subsequently, against England colonies. was one of the 1763, It causes against discontent which in the Devolution. Dr. culminated finally Eranklin to obtain a endeavored repeal prohibitory Parliament, succeeded acts, only obtaining 1773, an act the colonies to make their bills re authorizing for taxes and debts due to the that issued ceivable colony At them. out of the Continental Avar, breaking credit, commenced the issue of and the bills on AvarAvascarried Avithoutother resources for three or four It be said with that Aveowe our truth, national

years. Eranklin, of this fiscal Dr. use agency. independence Paris, in 1779, in a letter dated from after friend, April, Avhichthe Continental the depreciation currency deploring “The under the consolation evil had said: undergone, diminished the' debt is, public proportionately tax, kind of imperceptible every depreciation; it in the fall value that took part one paid having sums as such between paying psjssed receiving place hands.” He This effect cur his adds: paper through side And indeed understood this the Avater. is not rency even to the Iioav Ave is a the whole have mystery politicians, a Avarfour without able continue been years money, had we could no fixed how pay paper, previously to redeem This fund it. specially currency, appropriated ais wonderful machine. It Ave performs manage it* issue and clothes Avhenwe pays troops, office it; pro Ct,

Opinion J., Bradley, concurring. vides victuals and In a ammunition.”* subsequent letter,, of 9th October, 1780, ho says: issued They Congress] [the an immense quantity bills, arm, clothe, pay, paper feed their and fit out troops, and'with this ships; paper, without taxes for the first three bat years, they fought tled one of the most nations The powerful Europe.”† Continental bills were not made first, tenders at 1777, the January, resolutions Congress passed declaring current and be they pass ought payments, deemed in value same nominal sums in equal Spanish dollars, one toso receive them refusing ought be deemed an to the States; liberties of the enemy United of the several States recommending legislatures laws to that pass effect.‡ Massachusetts and other on the colonies, out of breaking war, prohibition Parliament, disregarded conferred bills agaiu quality th.eir legal tender.§ n These cited without reference to the precedents policy n several measures in cases; impolicy particular that is for the always question discretion. legislative They the historical establish that when the Constitution was fact of bills of credit employment was deemed a adopted, means, of of a legitimate meeting exigencies regularly aud that the constituted to them the government, affixing ot' a tender was discretion- regarded entirely quality Such a with was a mere inci- ary legislature. quality not be dent that annexed. might The might Continental not being regular government, having make laws for the trans- regulation private referred the matter to the State actions, legislatures. of the Constitution w'ere familiar

framers with all this his- were familiar tory. They which had governments exercised the thus bills prerogative issuing having and intended for the referred to. quality, purposes They first drawn their under these had breath governments; Works, 8, Franklin’s vol. 329. p. p. Ib. 507. † 3, of-Congress, p. 19-20; Journals vol. History, 2, Pitkin’s p. vol. ‡ § 7, Bancroft’s History, p. vol. Legal Dec. Cases. Tender J., concurring. Opinion, Bradley, of them, had seen impor- to administer They had helped these securities be uses to which applied. tant might we them all these facts when find therefore, of view, In all the with power present establishing.the government,' the sole other rehearsed, it, things, before giving amongst of the' and of the expressly prohibit- control money country and from of credit making the States from bills issuing ing a tender, and silver and imposing anything gold how such restriction General can no government, to it intended to leave resist the conclusion that we they case the future unimpaired, that power exigencies its nation should exercise? require Madison- of Mr.

I am aware that report according the clause Constitution, draft of relating original “ and read, to borrow money borrowing that the and States,” on the credit of -the United emit bills were, debate, some struck bills,” after words, emit diverse of mem- But struck out with views they out. bers, some them useless and them deeming others deeming The result hurtful.. was chose-to the Con- adopt stitution it now without words stands, cither grant or restriction of and it is-our construe power, duty instrument words, light of-history, gen- nature of eral and the incidents government, sovereignty. The same was the creation argument against, employed a States bank. to create of United A corporations was Convention arid The power .proposed rejected. with a limited to cases where -the was proposed application them authority public good might’require siugle It be It' still was State was incompetent. rejected.' might canals, confined but without effect. building ^then that such It was was argued unnecessary might chartered Yet two- Congress-has dangerous. United States whose has been sus- banks, constitutionality (cid:127) taiued but several As court, other institutions.

means and conducive to the end of appropriate carrying into as that effect the other such powers government, promptness, dispatch, borrowing- money Ci J.,

Opinion of Bradley, concurring. the fiscal operations it was facilitating government, deemed within the to create such an in- stitution under the laws general power such given pass might necessary into proper execution carrying the other powers views of granted. mem- particular bers or the course of in the Convention proceedings cannot control the fair meaning general scope Constitu- tion as it framed add now finally is a stands. It- finished document, itself, and to be complete in -the interpreted of of the circumstances the light history and of period framed, which it was at the one doubts nor No has ever present day seriously that the the doubted power to emit bills government of exists. has It been exercised the by government without a of its This question portion con- large history. being incidental ceded, the of such bills the giving quality tender follows almost as a matter of course. I hold it to be not prerogative every government restrained its Constitution to its by resources anticipate by bills, the issue of bills of exchequer credit, bonds, stock, or a Whether those apparatus. issues shall or shall banking not receivable in debts is an incidental payment private matter thediscretion of such unless restrained government constitutional prohibition. is distinct from that of This-power entirely money coining value thereof. It is not regulating embraced only make laws, necessary is auxiliary to the incidental It is often a borrowing money. means necessary anticipating realizing promptly resources, when, national is perhaps, promptness necessary national existence. It not an to coin attempt material, out of valueless like the of leather coinage money It is or kowrie shells. of the national ivory .a pledge credit. It is promise by government dollars; pay an to make it is not dollars. The standard of value attempt is not demands that its changed. government simply credit shall be received accepted public private creditors pending during exigency. 'Every government Doc. 1870,] J., Bradley, concurring.

Opinion has its to demand this when existence is at stake.. right The interests of citizen are bound with the fate every up can claim can- None If exemption. government. they their not trust in its time of trial not government to be its citizens. worthy

But it is not said, borrow why ordinary The answer is, way? department, legislative being natiou itself, its has a choice of speaking by representatives, and is the master methods, of its own mode discretion. One true, it is issue bonds, borrowing, government invite them. But this is capitalists purchase mode. is often It too and inefficient. time In tardy of war or public danger, Congress, representing sovereign of eminent domain, power, by authorize the right President to take use property public priváte for'the certificates therefor. This is done give government largely (cid:127) on It-is an such occasions. indirect way compelling owner to lend to the He is forced government. property on the credit. national rely

Can the man’s and corn thus cattle, horses, poor taken when public exigency requires it, and cannot the rich man’s bonds and notes like be in taken manner to reach the same If the end? government enacts of indebtedness which certificates it to- gives the farmer for his cattle shall be receivable- provender the farmer’s creditors in of his bonds and notes,, payment -is it more than loan anything transferring government the hands of one man to hands of per- another — than, more far able to advance it ? Is it more haps anything the securities of the same on the putting capitalist platform- as the farmer’s.stock?

No one that these are certificates supposes government never of to is paid never day specie.payments —that to return. And it matters not what are issued.. form they The is still Instead same. of certificates principle they or of notes, other form. And may treasury paper their not be made coin, payment.may they directly be first convertible into or bonds, other- government

VOL. XII. J., Opinion Bradley, concurring. of securities. whatever Through government changes to be it their ultimate is But is the paid. pas's, destiny pre- determine of when the department rogative legislative fit time for has come. It bemay payment long delayed, think it too after the has perhaps many may exigency long if But the abuse of a no passed. power, proven, argu- And the are ment its existence. courts not respon- against Questions sible of therefor. political expediency belong hails, not to the forum. It judicial might legislative subserve the if we should present declare good and a satisfac- unconstitutional, tender act public temporary a be the miserable considera- tion result. what But might of one of the tion be for a loss would permanent just a which, afni necessary powers government; did, it we failed exercise when had might heye to consider nor question, have had no court to-day a a make it do so. important country government issue notes or Another to- treasury the power ground bills is the necessity currency providing proper for the failure or dis- country, especially providing of the in times of financial appearance ordinary currency credit. Cur- threatened commercial collapse pressure a national is' rency necessity. operations govern- are transactions, as ment, wholly as well private dependent from mak- it. The State prohibited governments was one bills. money Uniformity money issuing ing Constitution. The objects coinage of its value is General conferred upon regulation has also the That exclusively. government government follows, to issue bills. It a matter of necessity, that, it is of these various provisions, consequence specially General National duty provide n currency. it, The States cannot do the charter except by if banks, local remedy, strictly con- legitimate uncertain, stitutional, and inse- inadequate, fluctuating, all the with to local cure, operates interests, partiality which, it the of the Constitution very object to avoid. ¡But the as General is duty it regarded government, Dec.

Opinion Bradley, J., concurring. with accordance the the spirit Constitution, strictly well as in line with national necessities.

It essential to national independent absolutely existence should have a firm on hold the two government great instrumentalities of sword and sovereign purse., to wield them without restriction on occasions of right national In certain peril. must emergencies government have at its not command, onlj? services—the personal bodies and lives—of its lesser, but the citizens, though less essential, absolute control over the resources Its armies filled,, must be and its navies country. manned, war, citizens Its material of its .person. munitions, stores' must come equipment, commissary from the This can be stimu-. industry country. lated into financial activity by proper system, especially regards currency.

A constitutional' government, notwithstanding right domain, eminent cannot take and forcible physical pos- all session heed to defend and is country, reluctant to exercise such when it can be avoided. must It purchase, command materials and by purchase products manufacture, labor, service of supplies, every cannot, kind. government power, compel physical turn out millions.of dollars’ worth of workshops leather, wood, manufactures aud cloth, iron, which are first conditions of the very military equipment. and set iu Tt must stimulate motion industry words, In other it must itBut cannot country. purchase. That is soon exhausted, hidden, or specie. purchase It must It cannot force its exported. credit. purchase by citizens take bonds. must It be able to its hands' lay on the instrument- of currency great exchange —that which transact all their own affairs people with.each other; have, must aud which lies at thing foundation of industrial effort and all business in the When the as it community. ordinary currency disappears, war, often does time when business begins stagnate then the general imminent, bankruptcy Legal Tender Cases. Bradley, J., concurring. of Opinion time to renovate its own re- must have at same of sources and revive the the nation drooping energies medium. it with a What that circulating by supplying and de- what its character will be, medium shall qualities, and the of the pend greatness exigency, degree it demands. These ques- promptitude legislative heart of the nation must not be crushed out. tions. The and their meet their be aided to debts The must pay people interest of country represent The debtor obligations. its and musí be sinew, and encouraged pursue its bone universal relief not afforded If bankruptcy avocations. and and would ensue, govern- industry would stopped, of the It in the paralysis people. wowld paralyzed he ment the ac- war, late civil fact'that during an undoubted and factories, mines machinery, and of the workshops tivity States, caused of the canals loyal railroads shipyards, an in- constituted currency, the issue by cause. National strength fountain-of exhaustible exhibited, not for views are purpose showing These therefore to bе one, a desirable ought on assumed; much less for purpose giving judgment case; any particular of its the expediency dxercise of those is one vital and purpose showing national in every sovereignty essential inhering powers to its necessary self-preservation. of its Is will lose' ! interest gold 'the creditor some

But for the creditor to' Is it worse needful ? the one gold thing the bank- than by everything a little depreciation lose by than to lose every- is it worse of his debtor? Nay, ruptcy is it What subversion government? thing of his and possession in the accumulation him that protects and can he and its laws ? not the Is it wealth ? government until for a brief-period trust consent All exist?. property vindicated have it shall right are held life, subject even those liberty all rights, liable to be impaired condition being the fundamental Taxes national vicissitudes. calamities providential con- value of or the my property. income my impair Dec. J.,

Opinion Bradley, concurring. homestead, or a demnation valuable my part it for a will public improvement, public defence, sometimes de- me; its value to stroy conscription me of may deprive life. So my liberty destroy govern- ment to borrow to be money, power exercised the con- sent of the if but to lender, possible, be exercised without consent, his if And when necessary. exercised in the form óf tender notes or bills of it credit, legal for may operate the time to the creditor to receive compel the being credit of the he which 'government place gold to' expected of receive from his All debtor. these are fundamental political conditions on which life, are property, money respect- held and under our of ively system enjoyed government, under of There times nay, any system .government.

when state absorb-all subordi- exigencies rightly nate considerations of interest, private convenience, or feel- ; and such times, at ing temporary though compulsory a creditor acceptance by private credit, government in lieu of his debtor’s is one oif the obligation pay, slight- forms in which the est burdens of can be necessary society a Instead of violation such sustained. being obligation, one it to it those conditions under which subjects merely is held and it enjoyed. consideration this.objection

Another is the bearing fact that the to coin money given thereof, includes yalue álter the regulate was 1884; done in metallic standard of coinage, whereby alteration, before the made contracts payable thereafter, cent, of six less satisfied payment per pure wheu contracts were contemplated than made.'. gold and this from its consequence flowing exercise, This power in the ease of discussed Mixed were much great Moneys, in and it was there held Sir Davies’s Deports,* John belong over the ordinary prerogative king’s coinage Parliament. sanction from without any money, Subsequent the standard fixed purity acts of Parliament weight * Page 48. J., concurring.

Opinion Bradley, has not altered for realm, of the which been the coinage same a But the hundred years authority fifty past. Queen Anne, is at which fixed it the time of competent it. it shall be time to Whether or not changed change And is matter of mere discretion. such is un a legislative Therefore, law of this country. doubtedly public mere fact that the value debts depreciated may their is not conclusive laws, validity; tender against of other that is the effect powers clearly its discretion. exercised by Congress-in that it makes views, from these It follows corollary of the that the contract no principle thing, difference terms, iii of the debtor is specific pay gold engagement, as the silver or to So money, specie. long pay is in described, terms contem- whatever country, is the object plation parties, a lawful substi- make the credit of laws to of chattel If the tute therefor. contract delivery substance, the does not law appty. or a commodity specific of diamonds or so for so carats many many If it bondfide must the contract be bullion, per- specific of ounces gold a such con- if terms import But which naturally formed. is in- evasion,- money only used of way are' tract but that reaches case. Not law the tended, the it the law in pleased. any way limit the operation might ex- of cases where contract an make exception Tt might ifBut it has not and silver money.. gold promises pressly its terms, is in enactment specific if the so; general done much sub- just in specie to money pay promises a to so of the law as mere promise pay to operation ject law, is that, in promise contemplation dollars*—for many in specie. to pay in decision one of from brethren Ldiffer

Hence- my the case of Tribilcock court, wit, to now before the bases * June, in which promise 1861), v. Wilson (made of nine hundred dollars date, after one year to sum pay, infra, 687. See n Dec. 1870.], Cases...

Opinion of j., concurring. Bradley, cent, ten interest date, from .per Of payable specie. course this difference arises from the different construction given do acts. I not understand the ma- jority court to decide an that act so drawn as to em- brace, terms, contracts would not be payable -specie, constitutional. Such would decision completely nullify claimed for the For it would be government. the use of additional to easy, words, one or two very make all contracts payable in,specie'.

It follows as another the views which I corollary have that the expressed to make notes a treasury tender, whilst a mere to incidental one that of issuing are theorists. The on writers generally economy political to the exercise of opposed the. The power'. considerations which adduce they very proper urged the power whether The depositary power. question in exists a questiqn national is a practical government, great states- and national relating safety independence, [Snp. J., concurring. Bradley, Opinion than economists can are better question men judges be, is ascertained prac- Their history judgment well words as the the silence tice of governments, ' would of authorities A of our written Constitution. parade Chief Justice Marshall’s but after pro- serve little purpose case found discussion great powers not If we v. The State Maryland. speak of McCulloch authorities, the Constitution ana spirit according elaborate extracts events, incontrovertible and the logic to our decision. cannot add-weigbt laid on the fact ha!?been stress supposed

Great Eng never wars has made in all its land great emergencies, n a This tender. imports its legal .exchequerMils eulogium contracts, in relation to which conservatism on British well It is known nation would hardly regard flattering. 1820, most for from over twenty years, that over existed system prevailed stringent paper her thq at foundation of all and lay elasticity England, Bank of tljat notes, It true endurance. England reached an was to issue until amouut bank required made tenders, then weife unprecedented, technically ,of arrest and for the purpose except relieving impris debt; worse than the bank that, onment for was ex its to redeem notes in specie, except pressly forbidden amount to answer the certain small The purpose change. to receive them. The had obliged people its domestic wherewith to else creditors. The pay nothing was had no for that absorbed themselves specie, people for the uses husbanded Bank England, gov wars and ernment in on its paying carrying foreign foreign banks on subsidies. Bank of country depended and of could not course they redeem support, England The result was that the their circulation- specie. nation to treat the notes as a bank perforce obliged In or suffer inevitable such state of bankruptcy. things man who it.went hard with demanded very specie A his contracts. man (cid:127)fulfilment of the name of Grigby case his into it, court, tried and elieited from brought Dec. Legal 569 Tender Cases. J.,

Opinion Bradley, concurring. Lord Alvanley : Thank expression energetic God, few such creditors as the have present plaintiff been found since of the act.”* It is to be passing presumed he was the last that ever showed himself in an court. English

It is well known since resumption specie pay- the act ments, 1833, has rechartering bank, expressly made the Bank of notes a England tender.

It is to refer to other unnecessary France is a examples. notable one. Her issued at the assignats, commencement the Revolution, the same during performed office as bills; our Continental and enabled the nation to gather up its latent and call out its strength Almost energies. every nation of at one time or has Europe, another, found it neces- to resort to the same sary, expedient, method of carrying on its itself operations defending against aggression. sad,

It if indeed, would be nation wore great now to Of a so deprived power enable necessary it to protect its own existence, with the oilier cope great powers of the world. No doubt would foreign powers if rejoice we should No doubt deny po-wer. creditors foreign would have, from the rejoice. They first, taken in- a'dеep terest But no true friend question. to our govern- to its ment, stability power itself sustain under all can vicissitudes, be indifferent to the which it great wrong sustain a denial would of the power question —a exercised, to be seldom but one, the certainly; possession so'essential, and as it seemslo me, so undoubted. question so Regarding to the important I eahnot stability government, in the de- acquiesce Griswold, v. Hepburn cision I cannot consent that the should be of one of deprived its just powers by a decision made at the time, under the circumstances, in which that decision was made. On a question relating where I am government, satis- perfectly fied that it has the I can never power, consent to abide by a decision unless made it, denying reasonable una- Puller, Bosanquet & [Snp.

Dissenting opinions. Opinion of the Chief Justice. nimity Where the de- acquiesced country. cision is recent, and is made bare by.a majority court, and. a time of on excitement during public subject, when the has entered into the' dis- question largely political cussions of the I consider it our to sub- day, right duty ato further if a ject examination, of the court majority are dissatisfied with the former And in this case, decision. with all deference and former of' respect judgment I am court, so convinced'that was erroneous, fully interest, prejudicial rights, safety general that I, for have no hesitation in one, government; reviewing it. It should be remembered, this court, overruling term in at and within a which, few weeks very after, in decision v. Hepburn was when the Va- delivered, Griswold cancies on bench were filled, hear determined This fact must have had the question reargued. necessarily effect of that the decision was not apprising country in, and of conse-? fully acquiescod any injurious obviating the business of its reversal. quences country In the decrees in all the cases us before my judgment should be affirmed.

The, CHIEF JUSTICE, dissenting: We dissent from and conclusion in the argument announced. just opinion which the an

The act of Con rule,'by constitutionality an exercise of passed implied power alleged gress tried, this.court, is no in It question. longer* open v. Maryland* was laid down the case of McCulloch “ Marshall, the end in these Let Justice words: Chief Constitution, let it be within the scope legitimate, are which and all means which are appropriate, plainly end, are not but consistent to that adapted prohibited are Constitution, with .the letter and constitu spirit tional.”

And it is the of the court to acts of pronounce plain duty

* Wheaton, Dec.

Dissenting opinions. Opinion, the Chief Justice. nor in the exercise of an not made express power within the of this if made in rule, reasonable scope coming of an unwarranted the Constitu- virtue implied power, not made in tion. Acts of of the Con- pursuance stitution not laws. of these the case

Neither propositions questioned v. who dissented Hepburn Griswold.* .judges 25th, ease maintained that the clause in the act of February notes a 1862, United States making pay means to ment of debts was an appropriate, plainly adapted hot but consistent with end, a constitutional prohibited letter and Constitution. The spirit majority as then felt court five out constituted, eight, judges an to conclude that act mere promises making obliged tender in of debts dollars payments previously pay a means is not contracted appropriate, really plainly adapted, into effect express calculated vested carry with the is inconsistent of the Constitution, spirit Congress, Constitution.” and by prohibited the of De

In the case UnitedStates v. we held unani Witt,† the that a of internal revenue law provision mously prohib the sale of certain oil in the was States iting illuminating unconstitutional, increase the though might production sale of other and oils, and the revenue derived consequently because this them, was too remote and consequence warrant the court that the prohibition saying uncertain.to an and means appropriate plainly adapted carrying the execution collect taxes. into lay then, that the We whether a law is a question agree, means to execution of ah necessary proper express within the of these words as defined the meaning power, by a means rule—that is to say, appropriate, plainly adapted, but consistent the letter not of the prohibited spirit Constitution, judicial question. not Congress may —is for the means execution of an adopt any express power fit see It must be a maj'' Congress adopt. necessary 9 Wallace, 606. Id. † Dissenting opinions. Opinion the Chief Justice. means within fair of the rule. If not

proper meaning such it cannot be with the Constitu- employed consistently tion. the means Whether actually employed given case are such or the court must court decide. The must of the of the fact, judge degree necessity. four,

A five to in the which court, opinion majority has read, been rendered just judgment reverses five to iu three, former of an pursuance majority opinion terms, after at successive formed repeated arguments, consideration; and declares the careful clause constitutional; that an act of say, dollars tender as dol coined pay making promises debts is a lars means payment pre-existing appropriate the exercise plainly adapted powers expressly and not Constitution, itself prohibited by-the granted but with its Constitution consistent letter and And spirit. reversal, unprecedented has court, history no been those produced by change opinions who former One closed concurred an. honor judgment. career able after the case had been judicial by resignation had decided,* after been read .to in opinion agreed and after the when it would have conference,† been day de iu had not been court,‡ livered delivery for a postponed time week to preparation give dissenting full, court was then caused opinion. vacancy Grier Mr. Justice been subse resignation having been, and an additional filled justice quently having ap act to, under number of increasing pointed judges nine, took effect on the first Monday December, find the then themselves iu 1869, majority minority constituted, court, now question. .the however, remain convictions, Their We ad- unchanged. in here to the opinion pronounced Hepburn v. Griswold. a firmer Deflection has belief in the only wrought soundness doctrines the constitutional maintained, of and in the im- . them of country. portance * November, 1869, 29th January, 27th 1870. 31st January, 1870. † ‡ Dec. 1870.] of the Chief Justice. opinions. Opinion

Dissenting in what was said the dissenting much of that We agree of a has which become opinion that case, opinion said. was constituted, correctly as now the court majority from Chief Justice all that was quoted We fully agree reserve, without We had indeed accepted, Marshall. that in which judge powers great

definition implied of which the quoted his summed up argument, language “ the it to us if was intended to ascribe But formed part. to the test an act that when doctrine brought the clause Constitution,” clause namely, grant this “ its must necessity the power ancillary legislation, ing to the conceded un absolute, and its adaptation purpose must not to disclaim we be permitted ouly questionable,” of the then that there opinion it, nothing say which the assertion of such doc approaches majority indeed venture to cite, We did approval, trine. work on in his the Constitu great Judge Story

language the words were intended tion, necessary proper that once “a sense at and to have admonitory directory,” the means used in execution an. that express require end,”* should be to the fide, bond appropriate the tenth amendment, also ventured to say reserving or the not the States people powers delegated it to Constitution, States nor United prohibited have a States, intended to like “was admonitory and to restrain limited es sense,” directory from the exercise of the Constitution powers tablished by or derived inference not by just clearly delegated In thus so Judge Story, quoting powers delegated. did our own we

this certainly expression opinion, that we could understood suppose possible asserting “ was clause in restriction question designed incidental to every ancillary power grant It “was terms.” proposition express v. That refu Maryland. stated and refuted” McCulloch said us. assert tation touches We nothing 42, Constitution, on Story p. § Legal Tender Cases. Dissenting opinions. Opinion the Chief Justice. — words of the Constitution are such as admonish assumed, to are not implied powers rashly lightly and that are not to be all, exercised at they unless, i(bond words to the' Judge Story, they appropriate fide in end,” or, Marshall, the words of Chief Justice “appro to a constitutional and plainly adapted” priate, legitimate “not end, and but consistent with the letter and prohibited, of the Constitution.” spirit to real difference therefore,

There have been no appears, the court as in rule which the existence opinion an is to be when v. tested, Griswold implied Hepburn power decided, the then seem to have though minority sup there was. Tlie difference had reference to the posed appli rather cation the rule than to the rule itself. the if minority The admitted that in the powers relating “ there is not sufficient warrant alone, coinage, standing ” for the exercise of the make notes a power legal tender, “ them not without decided when we thought weight,

come consider of the of this existence question power as one necessary into execution proper carrying admitted other This powers government.” weight “ found the fact that an over the lawful express power was confided to money country apd forbid- “ den States.” It'seemed to them not an unreason- ” able inference in a that, certain making contingency, securities perform thb office of government money of debts would be in payment with the harmony power to coin expressly We connec- granted no money.” perceive tion between the to coin and the infer- express power ence that the make government may, any contingency, its securities perform coined functions as a money, tender of debts. We have payment supposed (cid:127) to exclude from power circulation notes not authorized national be deduced government perhaps, might, from the power the value coin; but that the regulate power to emit bills an of credit.was ex- ercise of the to borrow power and that its money, over the was incidental to currency and to the Dee. of the Chief

Dissenting opinions. Opinion Justice. commerce; was the doctrine of This to regulate Fenno,* v. elaborated Bank fully the Veazie although whether the that case. question quality bills distinct to these con depends can imparted siderations. then, the to make these notes of-the

Was, govern- in bills of credit —a tender an ment —these legal payments to a con- means legitimate and appropriate, plainly-adapted státe 'or, end 1 the as the of stitutional question opinion “it, stated does there exist minority the then any power in the execu- by express government, grant,- Congress, this act of which tender was tion necessary legal proper here defined under the circumstances the sense of its ”? passage of then affirmed on minority opinion means, that it was within proper a necessary the ground case of v. court, definition McCulloch was on not that it war, prohibited Maryland, carry Constitution, it was or letter of the ad spirit though law of contracts, mitted to be obligation impairing that it deprived many persons objection notwithstanding and. their without without' due property compensation law. process (cid:127) We was said shall not add much what opinion these the then on points. majority in'the as well as in read, made opinion just The reference of the Chief bar, Justice, at opinions argument if to warrant, seems it does Treasury, when Secretary further in some observations before proceeding require, the discussion. at the time the tender clause was

It his fortune was legal bill to authorize of United States inserted in issue the sanction of to be notes and received Congress, charged with the anxious and funds responsible duty providing In no made him of the war. report the'prosecution was the notes of the the expedient making * Wallace, 548. [Sap.

Dissenting opinions. Opinion the Chief Justico. United States a He the issue suggested. urged on demand in notes coin or coin in payable received When the duties. State banks had payment suspended he recommended the specie issue United States payments, the the bill to authorize the issue United passage As circulation. were maintained general long they by at or near value-of par would specie they all dues, accepted as well as payment private public. Debtors as a rule would else unless general pay nothing and creditors compelled suit, would them as by accept long would lose less than In new suit. by acceptance by transactions, sellers would demand and would. purchasers

vol. xii.

Dissenting of the Chief Justice. opinions. Opinion commodities. in the for prices the premium specie pay coin or whether of them, The difference to currency, latter is which the in the fluctuations to would be paper, in- as to not sink so low as notes So should subject. long could them to receive because they duce creditors to refuse due, of debts sense be said to be any just payments with- would be them a tender for provision making was to discredit currency out effect except not convertible circulation The real note support applied. due the for debts coin, gov- on demand into receivability amount. and limitation of loans, ernment, including specie needed for the transactions is smaller than is If the amount transac- allows the these law of the country, u^se for the demand one tions of description currency, .but shows will But history depreciation. description prevent issues so Au no instance of restricted. approximation paper .all,that is and this was attempted in limitation possible, were restricted to the issues of United States notes when millions. But this limit ex- was soon one hundred fifty millions, and even this was four hundred tended to fifty removed for the issue of soon provision practically associations without Dee. Legal Tender Cases.

Dissenting opinions. Opinion of the Chief Justice. — bonds, would at In other words, par. pay- specie ments would be resumed. does

Now, notes a tender increase their making'the legal value? It is said that it does, them a new use. by giving The best economists political that it does not. When say notes, it government receive its compels people received, declares does not them to be virtually expect without It itself insol- compulsion. practically represents vent. This does not the value of its notes. certainly improve It is an element of In addition, it creates a depreciation. interest the debtor class and in the powerful purchasers of bonds the lowest depress the credit of poiut become, notes. The these the easier the cheaper payment and the more investments in debts, bonds profitable coin interest. bearing other hand,

On prices become, for higher every- needs thing buy, greater as well as public accumulation debt. It is true private a such state is things acceptable debtors, investors bonds, It is speculators. their of relief opportunity And or wealth. many their persuaded by representa- that the tions forced circulation not but a only necessity But the benefit. benefit is a delusion and apparent the ne- In their use, the cessity imaginary. notes are legitimate hurt not made a helped by tender. The being- legal legal valuable quality only purposes dishonesty. honest is answered as well purpose and better Every with- it. out . no hesitation,

We have therefore, our convic- declaring that the these must not “be but “prohibited, exercise of implied powers the letter of the Constitution.” spirit consistent that no shall be amendment provides person The fifth without life, of liberty, property compensation deprived of the former of law. The opinion or due minority process the of the the against that argument validity says on this constitutional clause, founded is tender provision, “ for their It that too declara- perception.” says vague be thus unconstitutional,” of war would because it tion might and “the the value abolition of tariff property; depreciate it iron,” because the em- might déstroy on"sugar, capital manufactures; in those and “the successive issues ployed bonds,” because make those they might of government less hands valuable. But it seems to have private already the then attention of that declare to minority escaped taxes, to borrow are all repeal war, lay money, the then powers, majority express opposing of the Constitution to the claim anof im- thé prohibition what Besides, resemblance is there between plied power. exercise of these the effect and the express powers tender clause debts? upon operation pre-existing effects of are indirect the exercise of The former undisputed latter acts directly upon relations of debtor .powers. It that fundamental and creditor. violates of all principle that the shall not take the legislature just legislation prop- it to B. It that B., A. who has give says erty-of pur- A. a certain farm chased a.farm price, may keep if he will it, without certain notes only paying some bear or be even proportion price, It seems us that this is a manifest worthless. violation of of the Constitution. clause this think also that it with the

We inconsistent spirit in that it impairs Constitution contracts. In obligation the then it is said: minority “Undoubt opinion frankly is a lawr it contracts made impairing obligation edly , Dec.

Dissenting opinions. Opinion Chief Justice. it is before*its added: “While passage,” immediately forbids the States such the Constitution pass laws, does this well as the not forbid opinion, Congress,” opinion refers to the read, establish a express uni just authority as a form that it was not the bankruptcy proof system Constitution to intention of the withhold It that power. authority ifue'that Constitution bank pass grants law, but our inference is,, can way rupt of contracts. It discharge obligation may pro vide for of debtors to ascertaining inability perform and, their surrender of their contracts, prop for their But this is a erty may provide discharge. very different con thing providing they may satisfy tracts without without payment, pretence inability, without any judicial proceeding.

That Cougress possesses general power impair is a of contracts use which, to the lan proposition obligation “ Marshall,* of Chief must Justice find its vindication guage in a of heard train often courts of reasoning justice.” well be added,” “It said the same great whether judge,† nature of and of does not society government the prescribe limits if some to legislative and, be power;- auy prescribed, if found, where to be the of an they property individual, can be seized honestly acquired, without fairly compen To the sation? is legislature legislative power granted, the whether act but the question the transferring prop an the individual to is in the public nature aof erty is well of serious worthy reflection.” legislative the And if an individual cannot be property transferred less how much to the another public, individual?

- remarks Justice Marshall These Chief made in a ease which it became to determine necessary whether a certain act of the was within legislature Georgia the con stitutional the prohibition against impairing obligation contracts. And assert fundamental they principles society which that had prohibition its government origin, Cranch, Fletcher Peck 6 v. Ibid. 135. † Cfc. [Snp. the Justice.

Dissenting opinions. Opinion of Chief force the construction of the Con They apply great In like manner and stitution of the United States. spirit declared* “an had act of Mr. Justice Chase previously first of the legislature contrary principles great social be cannot considered exercise compact rightful such acts he “a instances authority.” legislative Among lawful, contracts of law impairs private destroys a law citizens.” we be mistaken in that such Can saying establish of Constitution ordained to contrary spirit Marshall we be mistaken that if Can justice? in-thinking were here fo in this case pronounce Story judgmeut clause now would declare question with the letter and to be inconsistent prohibited by of the Constitution? spirit doctrine,

It is we say reject unnecessary wholly advanced in this time, believe, court, for'the first we that the has under present majority, “powers legislature Constitution which out of of powers grow aggregate conferred or out of the sovereignty government, instituted If this admitted, it.”- proposition also sole admitted that legislature judge the exercise of such necessity powers, becomes absolute and unlimited. practically far been directed to the

Our observations thus have ques- tender clause and tion constitutionality its contracts made before operation upon passage ' We whether it be constitutional law. shall now consider after its In other to contracts made passage. application has to make words, whether anything coin a tender. do

And to that we here it is well say again enough fit for a cir- to issue or to them notes question authority circulation medium, or to their by provid- culating promote debts to the for their of receipt payment government, ing bonds; short, for to either in coin or redemption do we them use as Nor to adapt currency. question Dallas, 388. Bull, Calder v. Bee. Tender- Cases. of the Chief Justice.

Dissenting opinions. Opinion notes, such of contracts payment lawfulness stipulating of such con- of performance enforcing or'the propriety of the tender such to currency, according tracts by holding has The terms, is, sufficient. question power their or irre- redeemable make the of Legal 584 Tender Cases.

Dissenting Chief Justice. opinions. Opinion, — And we used at the time the Constitution -adopted. which at time de- referred no have authority been metals fined otherwise than minting stamping coining as metal coined for otherwise than money; are the These words of John- of commerce. purposes son, contains no reference to money whose dictionary great of paper. banks, both is true that notes issued

It by England in ex and were used circulation, were America, .then called and that bills common money, speech changes, had States, issued both credit, by by Congress name; under the same in circulation general been recently never as real and bills were money, notes regarded but these were treated as its only, represensatives but were always notes themselves- described currency. else than to be promises pay do not anything purport securities, held and therefore have been money. They ;* and the idea that it was ever taxation from State exempt what when the to emit bills credit took of was power place draft. stricken from the lie that reported says distinctly to he in the motion strike because the out, acquiesced gov ernment would not be disabled use of thereby and while so far as would bo safe public notes, proper, for a and it cut off the pretext paper currency, particularly a for tender either for or bills public private making discussion of credit The whole bills proves, debts.* that the Convention beyond possible question, regarded ex make tender as can law tenderedin of debts.” by in payment And The v. United States of court, the Marigold,‡ speaking of trust a and uniform and duty metallic maintaining pure of standard uniform value the Union, The said: throughout of power money its value was coining dele regulating to by gated very Constitution Congress purpose, the framers instrument, by of that assigned creating of the uniformityand a such standard purity value.” preserving of of of the court present majority say legal “ have notes become universal of measure values,” and that the hold of legislation such Congress, substituting coin measures for by notes a tender in making warranted by payment, Constitution.

But if the sense of words, if the plain contemporaneous if exposition parties, common consent iu understanding, if the of courts avail opinions anything determining of the Constitution, it seems to meaning impossible doubt that the to. coin is a power to moqey power establish a uni- form standard of value, and that no other power establish standard, such a extent, to a limited

is not equivalent, except very fix standard of and measures, as the weights that clause of authorized is coined by money the.Constitution and as a be necessary consequence.must money, money fabricated from the value, metals actual precious generally at the used for when the purpose Constitution period was framed.

* Wealth, 124; Coins, Liverpool Walker’s Science on 8. Works, Constitution, 8, Jefferson’s art. clause 5. † ‡ -Legal [Sup.

Dissenting Clifford, J. opinions. Opinion— Coined such as money, authorized that clause of by instrument, consists the coins of the United States fabricated law, and is stamped by same authority as that described in the next same sec- money clause tion as the current coins of the States, United and is same as also “the and silver coins” described gold in the tenth section article, of the'same prohibits States from bills of coining or mak- money, crédit, emitting and silver coin tender iu ing anything gold paymeut' of debts.”

Intrinsic value exists and silver, as well gold before as it is after fabricated and as which shows con- stamped coin, that the discretion clusively, principal vested under that clause of the Constitution consists in the power the denomination, determine de- fineness, or value and scription struck, coins be .to and the relative propor- tion or silver, whether gold standard or pure, . coins, used in proportion alloy and to minting-the the mode in which the prescribe intended object grant shall be and carried into accomplished effect. practical n Discretion, to some extent, in value of prescribing minted, coins vested in doubt but the beyond Congress, intent of the Constitution is plain in deter that-Congress, shall matter, mining governed chiefly- weight value intrinsic of the coins, as it is clear that if the- value of the same stamped should much exceed the real value of and silver would, the minted gold coined, coins cease tó be immediately either-current coins a standard of value contemplated Constitution.* Commercial transactions imperiously require value, standard of and the world, commercial aat iu very period early civilization, silver as true standard adopted for that gold purpose, evei; the standard has since originally adopted continued to be so universal consent regarded time. present have, emissions at one time or been

Paper another, author- ized and most commercial employed currency by nations,- Depreciation Currency. Huskisson on 22 Financial Pamphlets, 579. Dec. Legal Tender Clifford,

Dissenting of J. opinions. Opinion— than or more and no extensively by past present, government, all ex- is safe to affirm that States, the Unitbd yet has demonstrated in its use as medium circulating perience however that it cannot the by. proposition any legislation, a.standard of value the just equivalent be made stringent, failed, have kind the always silver. Attempts gold stations, whether men, and no public private body of the truth of that ever had more instructive' teachings framed the Federal than the men who remark patriotic emit bills of had seen the to Constitution, as they Revolution, the exercised the war of credit freely during States, but also Confederation, only by from, effects and the its calamitous knew bitter experience medium as a stand- worthlessness of such a utter circulating men have done ard of value. Such so instructed could not an irre- otherwise than did which was to do, they provide value, standard of to be coined from and silver, pealable gold as little discretion of Con- subject leaving as was with а wise forecast and an invincible consistent gress determination that the essential Constitu- principles tion as means should to secure the perpetual blessings to themselves and their liberty posterity.

Associated as the to coin grant money regulate value thereof with to fix standard of grant weights conclusion, when that fact measures, is properly in connection words of the is irre- weighed grant, the framers sistible that of the Constitution purpose standard of value which provide permanent should, times and at all under all consist of circumstances, coin, fabricated from silver, stamped, gold by authority and that at the law, intended same time to withhold as well as from the States, sub- Congress, other as a stitute standard of value in matters finance, business, trade, or commerce. view also be drawn from the last Support of the clause words unrestricted giving the value as it would coin, be difficult foreign regulate if not full effect to the standard of value impossible give -Cases. Clifford, Dissenting opinions. Opinion J. if Constitution, times of

prescribed fluctuation, the medium be coins circulating supplied by could foreign to their subject to any congressional regulation (cid:127) value.

Exclusive to the and the value of alloy regulate coin struck their own by the authority, authority the was vested' in States, Confederation, under the Congress but the was Congress prohibited' euacting any regula- tion as to value of the the coins unless nine States assented to the proposed regulation. the to such

Subject Congress pass regulations true it is that the the unquestionably States, under Confed- as well as the eration United States, the possessed but the coin Constitution, when it /was money, adopted, denied to the States all and authority also subject, ordained that should not make they anything gold silver a tender in coin of debts. payment all doubt the framers of the Constitution

Beyond intended that the unit of the United money States, for measuring should one values, a3 the word dollar, dollar in the plural form is employed body Constitution, and also seventh amendment, recommended at by Congress after its first session Constitution Two adopted. wit, that, 6, before July 1785, years Congress Confederation enacted that the unit of the money United “ dollar,” should be one States and one later, to year wit, 8, 1786, established -the standard for August gold silver, and also provided of account of the money States should United with the correspond coins established law>* of March, 1789, On the 4th first assembled under Constitution, without proceeded unnecessary delay to enact such as were laws necessary put which operation Constitution had ordained and estab- Ordinances had been lished. passed Confedera- during ed., S., ; 1 1st Laws the U. 640 1 History of the Curtis’s Constitution, 443; 10 225; Journals of (Dunlap’s ed.), 1 Life of Gouverneur 273; Morris, Congress, Journals Doc. Clifford,

Dissenting opinions. Opinion J. tion to the executive and for the organize departments, establishment of a new did not mint, but the Constitution laws, those continued to perpetuate any yet Congress for a law was three before new period legislate years account, unit or the passed money prescribing ” either offices for the courts. public Through- out that it must have been understood that those period matters were Constitution, impliedly regulated tariffs were laws enacted, duties passed imposed, tonnage collection of the several executive duties, depart- ments created, and or- the United States judiciary under exercise full ganized empowered jurisdiction the Constitution.

Duties of duties tonnage import required, by the act of the 31st of “in 1789, July, paid gold silver and same coin,” the act adopted compre hensive as to the value coin, no regulations foreign was made for or for a standard of provision coining money value, so far as that is involved in the except subject regu- (cid:127) lation as the to value of for a coin, unit, money foreign was nor the of ac as to any regulation prescribed count. Revenue for the uuder of the support government, those -was tó be derived duties from regulations, solely duties, the tonnage import provision express those' duties should be collected in and silver gold coin.* under the Constitution had thus proceeded

Legislation before the far was created. Treasury Department Treasury for the and disburse collection, regulations safe-keeping, ment of the became and Con public moneys indispensable, on 2d the the 1789, act to September, passed gress, establish which has since remained ever Department, Treasury act}, of the is de By Secretary Treasury force.† clared to be of the head and it is made his department, other duty, for among things, digest prepare plans improvement finances management public * 1 24; Stat. at Large, Ib. Ib. 65. † LSup. Clifford, J.

Dissenting opinions. Opinion— credit; and re and for the to prepare support public estimates of the revenue and of the ex port public public revenue; the collection .of the penditures; superintend accounts and forms of prescribe stating keeping be returns; all warrants for moneys making grant issued from treasury, pursuance appropriations services the finances and to such relative to law, perform as he shall be directed perform. from duties of and from collected import

Moneys tonnage at that the entire resources of constituted period duties and the antecedent act of pro- national treasury, Congress, re- duties, the collection of those imperatively viding ami silver all such duties should paid gold quired mentioned in which it follows that coin, moneys were moneys act Treasury Department creating revenue coin' were collected silver public gold duties imposed by duties import from the tonnage acts of prior Appropria- the before-mentioned Congress. were understood made appropriations tions by Congress and all warrants issued in the treasury, moneys were understood to warrants of the Treasury Secretary and silver coin. Forms for for the gold keeping payment war- and for returns and for accounts, making and stating issued from to.be treasury pre- rants for'moneys all those forms the and in Secretary Treasury scribed, Constitution,and unit the money recognized adopted four before been ordained which had years Confederation, national was show that the treasury organ Argument and silver the that the coins of United basis the gold ized on standard of value is as it unnecessary, to be wore States which no man or of men can ever fact historical body is a Public attention had been directed contradict. successfully a mint for the of establishing necessity coinage to the met to before Convention several silver, years and gold and a committee Constitution, appointed frame to consider and the Confederation report on the 21st February, They reported the subject. Dee. 593 Lender

Dissenting Clifford, opinions. Opinion J. than 1782, more before the in -favor year treaty peace, such an and on the establishment, 16th of Octo creating ber, an 1786, ordinance adopted providing a mint should be established for the silver, coinage gold, and to the resolves copper, agreeably Congress previously mentioned, which standard of prescribed silrer, gold unit established recognized money resolves (cid:127) passed year.* preceding new Congressional organizing legislation had now where it became progressed poi'nt necessary to re-examine to make for the subject provision exercise to coin authorized money, as.

Constitution. Pursuant to that on April' Congress, 2d, act 1792, mint for the passed establishing purpose aof national made coinage, other provision, among that coins of of certain fineness things, silver, gold certain, and of weight, denominations, value and descrip- tions, should be from time to time struck and at coined said is there mint. made for Specific provision coining gold and silver coins, First, coins, follows: to wit: gold Eagles- of the value of ten dollars or units: of the value' half-eagles of five dollars: of the value of two aud a half' quarter-eagles dollars, the act in each case number specifying of grains- and fractions of a the coin shall contain, whether fab- grain ricated from or standard pure Second, coins, silver gold. to wit: each contain and. grains or units,” Dollars 371 of a parts silver, 416 grain pure of stand- grains -^ths ard silver. Like is also made for the provision coinage half-dollars, quarter-dollars, dimes, half-dimes, and also for the of certain coins, coinage copper but it neces- not. to enter sary into details much .those case.

Provision, conceded, it must is not there made, in express- terms, that unit of the United States shall be one dollar, as in the ordinance Confederation, passed during the.

but the under act consideration assumes that the throughout 647; 1 Congress, 225; ‍‌‌‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌​​‌​‌​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‍Laws of the 254; U. S. 10 Journals of 11 Id. Stat. at Large, ' YOL. XII. Ot. Legal Tender Cases. Clifford, J.

Dissenting opinions. Opinion— as coin coin that called dollar is the employed purpose, and units are is fact that the words dollars obvious the all the coins treated as that gold previously synonymous, that iis section are measured word described same by 'Very unit of Constitution. money acknowledged is an act of are entertained whether doubts strong and.silver coins to constitute gold absolutely necessary as such States, of 'he United fabricated stamped by a mint, executive officers of the pay- legal proper are as such coins Con- debts. Constituted ment of would bettor value, standard stitution, opinion tender for that that become purpose, seem to be th$y as fineness, soon if minted of the required weight lawful coined and circulation are authority, put in this case, to decide that but unnecessary question it of the act the 16th section establishing Congress, all and silver which shall coins mint, gold provided struck the said mint shall at, from, issued have been full tender in all a iawful whatsoever—those of payments values herein declared, respective “according (cid:127)weight full at values of less than and those proportioned weight is at all events Such their respective weights.” regulation even all shows that experience gold expedientas highly diminished in wear liable to be silver coins weight by abrasion, in-order even if necessary not absolutely coins, if of tender. full to constitute weight, has to show that the been remarked already (cid:127)Enough de dollar, is the coined unit the United States money if more be mint, in the act scribed establishing section of that act, it will be found wanted 20th United States of account provides tenths, units, dimes &c., shal dollars or be expressed . and all offices .and proceed accounts public had in confor in the Federal courts shall kept ings to that mity regulation.* measures as the circle of adopted by

Completed, 248, Large, 1 Stat. at Dec. Clifford,

Dissenting "of J. opinions. Opinion— were, the new into successful put operation, government act, of that it will be to take by instructive passage brief review of the events which occurred within the important of ten next or of the period ten years preceding passage, next the time when measure wras years first following- Two the Confederation. reasons proposed Congress the 21st of as the time to 1782, commence suggest February, in review, addition to the fact that it was on that day that the committee of made their Congress report approving to establish project a national mint.* as They follows: Because that date the close the’ (1) just precedes War of the ; Revolution and because at same the date (2), time extends back to a when all America had come period to the conclusion that all the in circulation paper currency was and worthless, was fit for a utterly stand nothing ard of value but and silver coin fabricated and gold stamped the national by Discussion was authority. subject continued, the ordinance was but the measure passed, was not as put the Convention operation', met the next year, and the ratified, Constitution was framed, adopted, President and the members of were laws elected, Congress were passed, the judicial was the execu system organized, tive were departments created, the revenue estab system lished, aud provision made to execute vested tlie power to coin a standard money value, provide as ordained Constitution.

Perfect characterizes the measures of that consistency entire period to the matter in respect question, would bo if it had been otherwise, strange whole series measures were to a extent the very largo doings the same class of men, whether the remark is applied old or the Convention which framed the Congress, Consti tution, first and second sessions of the new Con the laws gress passed referred to and the new pat system under the Constitution into full op eration. Wise and complete those laws some were, still

* 7 Journals Congress, Clifford,

Dissenting opinions. Opinion J. as the several had arose, difficulties States adopted nor the States, unit of the United of account money money the twentieth section of the act prescribed establishing embarrassments, Such however, mint. felt chiefly courts, were not of continu long Federal after States, as the several one in- ance, another, pretty new succession, Con established rapid adopted system and the both as to the unit of account. money gress 19th, 1792, re-enacted that December section Virginia, ’ alteration, act without material of. on the 20th 1794, New February, Hampshire, passed Massachusetts same similar law.* adopted provision so did Rhode Island South Carolina. year, and † thbfiext the on 22d 1796, concurred of and New February, 'Georgia 1797, of aud all on the other States the 27th January, York in same the course of a few the regulation years.‡ adopted ivas', in those concurrence essential particulars State the and it new system, cheerfully working proper the accorded without by legislatures 'unnecessary Stat$ delay. the unit the established coin mentioned money

Congress frs the one which had been Constitution, any1 in adopted in before resolve the Con- such seven passed by years and decimals of Dollars, dollars, Confederation. gress universal as the of account consent, were money by adopted from the exhibited be inferred unanimity by re- in States example Congress. Nothing following do the new but to mained for perfect system Congress the value coin execute money regulate no is clear that the Constitution thereof, pro- as it makes to establish the power value unless standard vision.for isit conferred grant. by and measures the standard of to fix rveights

Power in and uuam- in Constitution plain vested by Congress 478; Hampshire, of New Laws (Va.), Statutes Hening’s 13 ; 319; Massachusetts, Island, p. Laws 657 Revised Laws Rhode 2 † Carolina, 262. 5 Statutes of South 33; York, Greeln. ed. 363. Dig. M. New & C. Laws (Ga.), ‡ n Dec. .Cases. Dissenting Clifford, opinions. Opinion of J. — terms, and it was never doubted, biguous not until certainly a recent period, power conferred to Coin within or to fabricate and coins from stamp gold silver, which‘in the sense constitutional thing, together the.sanie with the fineness, to determine the de- weight^ and nominations of coined, was intended moneys to accom- the same as to values. plish purpose was so/ Indubitably . understood various prescribing regula- tions in- the act contained national 'mint,' establishing to be so andit understood continued branches of the the, executive, legislative, judicial and-by — whole States, of the United for the people period seventy from the of that years, act. passage New became regulations necessary, passed ^ méautime, the. increasing slightly proportioh alloy coins, used but if those gold enactments fabricating found, will examined.it carefully that no one of them

contains inconsistent with the views principle anything^ here at the Gold, time the act expressed. establishing ,a mint became. law, was 15 to 1 as valued compared silver, increased, value and to disparity gradually an such extent that the coius began disappear gold evil circulation, found it remedy neces and. the relative diminish proportion alloy sary augment whether or standard.. required gold, pure ing amount coined under that act were to contain each required Eagles 232 of standard pure grains 258,grains gold, gold.* Three later enacted that the standard years Cougress both and silver coius should thereafter be such gold that, should be of 1000 900 metal and parts by weight, pure 100 of the dollar was reduced alloy, by gross weight ingly same intrinsic 412J increased, grains, value but the fineness of the ^[30] that under the tlie original unit coins was act. remained correspond Apply that will rule to the and it be seen that eagle gross weight increased, would be as was in fact it but it act, con- by

* Large, 4 Stat. at 699. Legal'

598 Tender Cases.

' Clifford, —Opinion of J. Dissenting opinions. act, as under the contain, grains preceding tinued no more, and no conclusively change showing gold pure coins,* made in value of the was to be authorized dollars were Double eagles gold act 3d, at the of March mint, “struck coined” by was other coins standard established for 1849, but the gold hew coins should and the was that the provision changed, coined tender for their also be legal value.† value reduced in silver coins were somewhat Fractional but the same act 21st, 1853, provided February act thereto silver issued in the effect that the coins conformity five sum any exceeding should not be was to that the. enactment dollars, purpose showing coins, use, so essential for daily prevent fractional withdrawn from hoarded or otherwise being circulation.‡ effect of that it be that the conceded, however, Suppose silver struck . the fractional coins act was slightly debase still it is clear that the amount it, under quite coined td>furnish solid inconsiderable argument against was too standard of value the United proposition and that Constitution, such was fixed was States the. both people understanding, for a of more than States, period the United seventy the Constitution was from the time adopted put years under the laws of successful operation Congress. Through- unit was never di- the value of the money out that period remains what value, and it minished, respect to-day, mint, was defined in the when it establishing act made in the affirm that no one of the safe to it is changes coins, fractional silver ever coins, .except perhaps other limit whit of constitu- one appropriate extended beyond tional regulation. notes, called were notes, United States author

Treasury 1862, the act of 25th, to be issued February ized the credit of the United States, on $150,000,000, amount interest, were not to bear be made but. 10 Id. Large, ‡ 9 Id. 5 Stat. at 397. † Dec. 599 Legal Tender Cases.

Dissenting opinions. Opinion Clifford, JV — at the bearer were to be .issued treasury. payable They and the further Treаsury, Secretary provision was the notes so issued should be lawful of, all debts, tender and. legal payment public private, duties in within United on States, except imports terest bonds and notes of United States, which upon act “shall be in coin.”* acts provides paid Subsequent for a also in similar certificates of passed purpose except it will debtedness and of but not be deposit,” necessary acts, refer other as the of that specially history legis lation is decision court fully prior given the same subject.† examined it

Strictly doubtful whether either of the cases before the' court such present any questions those which have been discussed of the opinion majority read; court do, which not just suppose'they admitted, it then becomes the first whether necessary inquire place those am not closed the recorded decisions questions this court. Two are examined in questions opinion Whether majority court: (1.) acts are constitutional as to contracts made before the acts if Whether are valid to con- passed. (2.) applied made since tracts their passage.

Assume that views here and it expressed correct, matters whether contract was made before or after the act of was as it follows that passed, necessarily under make cannot, circumstances, any paper kind, tender in promises, debts. payment Prior to decision it is conceded that the just pronounced record was second never deter- question presented court, this- as it is mined involved in the except first but it is admitted of the court that question, by majority is the the first whether the acts under question, question are constitutional to contracts consideration made before their case of fully presented v. passage, Hepburn Large, at 345. 12 Stat. Griswold, Wallace, 618; 12 Hepburn Large, 370, 532, 710, v. Stat. at † Clifford, J. Dissenting opinions. Opinion ail act of decided that 'Griswold, Congress that the court in dollars.a mere paper "promises pay making contracted is unconstitutional of debts previously payment ' and void. ' de- as in it is as clear not, Admitted or anything case in that the of the court cision can be that judgment in the the cases before controls the first question presented in ease was that held that unless court, judgment and that for the opinion given by party given wrong overruled. Chief Justice to.be ought an show that the second is made to question

Attempt involve the’same two, but the one, my judgment, open no other as considerations, power upon possesses Congress is derived from the than which grant the subject- that and of coin. the value thereof foreign coin money, regulate that meant to remark it is deny proposition that not By all grants may pass express executing shall be proper carrying laws which necessary clause in another execution, as into provided same Much consideration the Constitution. same section of was as the discussion nearly is not pretty that required, topic in the case of Hepburn v. Chief Justice exhausted by same and which arose under the act he Griswold* contract'bore date In case the' that prior the opinion. gave and he showed that law, of the conclusively passage within the never it could be necessary proper, meaning Constitution, any executing Congress, a creditor to should laws to ac compel pass powers, ^express contract for the a payment promises fulfilling cept paper decision in dollars. Obviously expressed of money I court, the case am of confined to before opinion the same rule must Be whether the contract was applied law;, as the or after the contract made before passage is a dollars, contract expressed payment money, n in such make the Constitution money payment value. and establishes as a Money recognizes standard 614, Wallace, Dec.

Dissenting Clifford, opinions. Opinion J. values can no more be measured a without standard value than without a standard of or extent, distances quantities without a measures, standard of and it is as weights there should be unit as that there necessary .extent, unit of or of should.be weight, or-quantity.* Credit, whether issued the States or the currency, United States, or or. individuals, is private corporations the Constitution as a staudard of not'recognized by value, nor'can it be made such law which by any the. ' States can asthe laws of trade are than pass, stronger enactment. Commerce -legislative standard of requires value, warrants the experience prediction that com merce will it, have whether the United States or dis .agree as the laws of in commerce agree; respect stronger' than the laws of nation of the any commercial single world.† Values cannot be measured without a standard more than duration, time or surface, or. or length, solidity, weight, gravity, quantity. Something such case every must be as a unit which a adopted known bears relation that which is measured, to be as the dollar for values, the hour for time or foot duration, of twelve inches .the for for cloth measure, the length, yard foot square or yard for surface, cubic foot for solidity, for gallon liquids, and the pound weights; pound avoirdupois being used most commercial transactions and the pound troy “ for and silver and weighing gold precious stones, except diamonds.”‡ Unrestricted, “to-ñxthe standard and weights is vested in but until Cougress, recently measures! Con had n5t enacted any gress general regulations execution of that power.§ Regulations upon subject existed in the at the States adoption Constitution, same as those Works, 472; 7 Jefferson’s 22 Financial Pamphlets, 417; Horner’s Bul- Report. lion McCullock, 1869, Dictionary, † Commercial edition of 2 Bouvier’s Dictionary; 648; Law Jefferson’s Works, 472; 7 ‡ Jeffer on’s Correspondence, 133. 133; Large, 278; Stat. 5 Id. 14 Id. 339. § at [Snp. Clifford, J.

Dissenting opinions. Opinion— and time in the which at prevailed.' parent coilntry, was that those that the Story says reg understanding Judge States, until remained and ulations in full force to fix their should possessed legislate, own and measures.* weights the value domestic

Power to coin regulate coin was vested national government foreign and to of value prevent embarrass uniformity produce a variable currency.† perpetually fluctuating ments me commentator, is the universal same Money, says with which the dium or commonstandard comparison ascertained; he also value of all merchandise may it as represents respective speaks" sigh that is Such a values of other power, commodities.’‡ coin he adds, one ordinary money, exer almost universally sovereignty, prerogatives coin, circulation of cised order preserve proper good in the home a known value, market.§ of such Interests importance magnitude pervading for a uniform of value standard those involved providing entitled to the the Union manifestly pro throughout evils, in .view of the tection national authority, such a the want of standard the war during experienced Revolution, when the ivas inundated country the members of the Convention floods depreciated paper, did not hesitate to confide the Constitution who.framed to coin the money Congress regulate the value of but also thereof, value regulate was denied to the of the Confederation. coin, which foreign n these considerations and others Influenced by expressed * 1122; Story ed.), Constitution, on the on the (3d 2 Constitution Kawle § Limitations, 596; 102; Cooley Pomeroy on the.Constitu- Constitutional on tion, 263. Constitution, g 1122. Story on the 2† Constitution, Story 2 on the 1118. § ‡ Mill, iiconomy,"294. Political § 135; 254, Currency, Works, 289; 2 9 6 Phillips’s Paper Jefferson’s n Letters, Washington’s Sparks, 321. Dec. 603

Dissenting Clifford, opinions. Opinion of J. in the this court in the Chief decided opinion Justice, ,Ct. Legal Tender Cases. Clifford,

Dissenting opinions. Opinion of J. tutional and those eases also questions, argued, were bring to the aid of the court an unusual ing counsel of array and eminent abilities. great learning Investigation authorities, deliberation followed, examined, were and oft- consultations repeated ensued, and justices among case was held under advisement as as.necessary long fullest examination all the. of the court, before justices opinion court was delivered. law the By Supreme Court at that'time'consisted of the Chief Justice and seven associate the act of justices, that Congress having provided no in the office of vacancy associate should be filled justice until number should be reduced to six.* Five of the . number, the Chief Justice, concurred including in that opinion and the case, the State court judgment was three affirmed,, associate justices dissenting. Since that time one of the who concurred in justices of the court has opinion in resigned, Congress having creased the number of-the associate justices eight, .to cases before the court have been two and the result argued, is that the delivered in former case is opinion overruled; n five.justices and four dis concurring present opinion Five iir the senting. justices opiniou, concurred first five have- overruled Persuaded that the first opinion it.† for the reasons right, it is not already assigned, possible I should concur iu the even if it second, were true that other reasons of could.be .no any weight given support in the first cáse, that the judgment conclusion there reached must starid or fall without other support: other reasons, however, Many fortify invoked that conclusion, persuasive and equally convincing with those to which reference has been made'.

All writers upon political economy agree money standard of value, and the measure of ex .the universal and domestic, and foreign that the change,' power to coin the value of is an essential regulate attribute national Goods and chattels sovereignty. bar directly Large, 14 Stat. at 16 Id. 44. † Dec. 1870.] Clifford, of J.

Dissenting opinions. Opinion— of was first when the division one for tered, another, labor serve the and silver were to but introduced, adopted gold nations tacit of all of concurrence purpose by. exchange of commercial transactions.* at a very history early period as were of kinds used money Com modities various countries, at different in different but experience periods and-silver nations that soon showed the gold commercial in in a much embodied the desirable greater money qualities than or other known commodity any sübstance.† degreq the truth that shows of Daily experience proposition, it, to enforce as’all of remarks any supersedes necessity of value as a standard admit that a to serve commodity into small must be divisible a medium of easily exchange au indefinite of that it admit kept must portions; being it value that must without possess great period deteriorating; of transported in small bulk, capable easily be being of denomination money that from to given place place; to in be fineness quality, weight should always equal that the same denomination, of other money pieces of. as to the same or little variation subject its value should be in a are united much Such agree, qualities, possible.‡ and silver known than other any greater gold degree which was as known to the members' of well commodity, who framed the Constitution as the Convention any body and intrusted to extent with-the assembled, of men since any knew that affairs. money They public knew, world but also was commercial silver, gold whether issued bitter promises, from experience, paper or the worthless as States, United the States utterly value for any practical purpose. a standard of these most con remarks, truth Evidence character, is to found the published proceed vincing Debate first arose of that Convention. subject ings the States an amendment prohibit when proposed Wealth, 127. Science Walker's Nations, 35. 1 Smith’s Wealth † Dictionary 894; Mill’s (ed. 1869), Commercial Political McCullock’s ‡ Works, 294; Economy, 7 Jefferson’s Clifford,

Dissenting opinions. Opinion J. from bills credit emitting making gold anything and silver debts, coin tender payment debate, character of that and the vote on the amendment, became had but apparent paper few, if money friends in the Convention.* Article seven draft Constitution, Convention, contained the reported clause, “and emit on the States,” bills the United credit.of vested in bor appended grant row and it onwas the motion strike out money, clause thatthe discussion principal respect paper took Mr. Madison if place. it would not suffi inquired cient such bills a as that prohibit tender, making /to would remove the to emit them with temptation unjust views. he notes, said, in that that Promissory shape, when a tender, not some be best.” emergencies Some were in the acquiesce modification willing suggested b,ut Mr. Mr. who Madison, Morris, motion, submitted the if the motion there would objected, prevailed insisting left still be room for notes of a minister, responsible which, as “would do said, he all without the mis good Decided chief.” were advanced Mr. Ells- objections said he who worth, the moment a favorable one thought “to shut and bar the door and others against paper money;” their to the clause in decisive expressed^ opposition equally even would sooner see the whole saying they language, than retain the three “and words, emit bills.” rejected plan it to without say, Suffice discussion, reproducing motion States two—and the clause prevailed—nine out and no stricken was ever made was to restore attempt tender, had'few or no money, it. advocates in Paper never Convention, and it had more than one advo open the Constitution was cate under period dis throughout in the cussion, either Convention which framed or in it, of the States where it was conventions ratified. Virginia ou in the affirmative the motion strike voted out that Madison satisfied that clause, Mr. if the motion being pre

* 3 Madison Papers, 1442.

Dec. Clifford, J. Dissenting opinions. Opinion— disable the have the effect to govern it would vailed himself in notes, use of treasury being ment from the a and par currency, the pretext paper favor of cutting for “off a or private the bills either tender, public ticularly making for was for the debts.”* When the draft Constitution reported but the States from anything prohibiting making clause an' of debts contained silver tender payment gold but the Conven “in case consented,” exception, and made the out prohibition tion. struck exception, members that it was favor one of the absolute, remarking and all or able moment to crush out paper money, nearly all the Convention seemed to concur sentiment.† evidence acts are of intention, Contemporaneous certainly see more needed to show so, and if it is difficult to what intended withhold that the members of that Convention States, States, from the and from the United value, or a hut and silver standard make anything gold of debts.' decisive proof .payment Equally effect is found in same the debates oc subsequently States, curred in the conventions of to which the the several submitted Constitution, adopted, ratification.‡ that the States not to be Mr. Martin ought thought totally he emit bills of credit, deprived says right was so smitten with “that the-Convention paper money insisted that the should be abs dread that prohibition olute.’§' ais word much more than the comprehensive

Currency and as it include even bills of bank word money, may b.ills well as coins of and the word silver, as gold exchange under considera- of as employed grant money, and fabricated and silver, the coins of means tion, gold of their in- law, which, as virtue required by by stamped and their official trinsic value, universally acknowledged, and the standard become the medium of origin, exchange * 434, 3 1344; Debates, Papers, Madison 5 485. Elliott’s 2 History "Constitution, of Curtis’s 364. † 184; 290, 334, Debates, 492; 336; 1 Ib. 3 Id. 486; Elliott’s 4 Id. 2 Id. ‡ 478; 472, 369, 1 Id. Id. 370. 376. § [Su.p.

Dissenting opinions. Opinion Clifford, J. which, all other values are by expressed discharged. that the Support word em .proposition money, in that was intended to be ployed clause, used in the sense here is also derived from the supposed- employed language in certain numbers of the as well Federalist, which, is known, written and. published during period whether the States would the Constitution question 'ratify in their several conventions. Such men as the pending those writers of never could have lan such essays employed if had entertained the idea that guage Con remotest make .'grefespossessed paper promises a-legal tender.* n Like derived also from the support of Mr. language in his Hamilton celebrated report incor- recommending of a national He first states bank. poration objection measure, that tend to (cid:127)the banks banish the proposed gold and silver he country; answer secondly gives made to that the advocates of the objection bank, it what serves the is immaterial and then purpose money, the answer is not entirely as the says satisfactory, per- increase or manent decrease metals in precious can ever be a matter of country hardly indifference. “As taken other, lieu it commodity is a every (coin) the most effective wealth, as the species is of world concern it to-the state that it great possesses toit face demands which sufficiency any protection its external interests create.” lie favored incor- bank, national to issue bills poration on demand payable Dee.. 609 Clifford,

Dissenting opinions —Opinion J. a tender in such emissions either debts, as a payment member Convention which framed the of the Constitution or as the head notes, Treasury Department. Treasury been authorized however, have repeatedly by Congress, act June, with the 1812, 30th but it was commencing before the time when never the several acts in supposed that were could make passed such notes question in a tender of debts.* it Such en payment notes, was legal in acted, should be received of all duties and taxes payment and in laid, sold, lands the Federal payment by public n authority. was also made in most Provision or acts that the with the Secretary Treasury, approba President, tion of the cause notes to be might treasury thereof, value issued, at the payment of par services, of debts for which United or States were or supplies, to such law, be answerable by person might persons the same accept should be but it never willing payment, of that that occurred to such notes could legislators day made a of such discharge indebtedness, that the creditor could be public compelled accept- his demands. them just payment † second embarrassments, their Financial disastrous- to those which consequences preceded adoption arose towards the. close Constitution, last war with* Britain, and it is matter that those em history Great were too to be barrassments overcome- grеat pervading Legal 610 Tender Cases. Clifford, of J.

Dissenting opinions. Opinion— that the demand, corpora the act but provided cm payable the refuse, payment under heavy penalty', tion should not notes, bills, of its or of silver, obligations, in and any gold or in in the bank received nor upon deposit of moneys any' and discount its offices of deposit. of any the to to is made, fortify strange say, Serious attempt acts in constitutional the that question proposition for the use of treasury fact that providing the Congress, national to the the charters respective notes, granting receivable notes and bills payment made the banks, the is so answer to the taxes, but suggestion duties to is necessary pause hardly suggest that it obvious exact and silver or they' gold Creditors refutation.* such to require money, accept waive the right may' and silver, other than commodities, gold or currency, credit exercise creditors, the. States, the United taxes, and collect duties, to lay imposts, their express fit, see notes if accept treasury excises, may, as substitutes for the consti in such payments bills or bank cfiseussionof is .Further proposition currency. tutional destitute merit as it. is plainly any unnecessary', whatever.† wap notes in the also had to revulsion of treasury Resort Mexico, war with in the also 1837, during great new could 1857, theory revulsion á tender was the of the court read constitutes opinion just aa exception, that the of the United as ordained government States, aud the Constitution, established is a by of enumer ated all the that to the powers; powers United delegated States the nor Constitution, it to the by prohibited by Statesj are reserved to the States or to the respectively people; in vested the Federal every power under the government- is in its nature Constitution aud that sovereign, all laws may pass necessarj7 the proper carry same in execution, or, into other words, that the sove power being includes, force the the term, reign by means, requisite to the attainment of the fairly applicable end, contemplated which are not restrictions or precluded by ex exceptions and not pressed necessarily implied, the es contrary ends of political'society.‡ sential Definitions different have been slightly different given by (cid:127) words aud

jurists necessaiy proper,” employed clause the Constitution the conferring upon Congress laws for pass carrying express grants into but no one execution, ever that a pretended con- struction or definition could be sustained that the general clause authorize the would of such employment means of one execution express would grant practically 135; Phillips’s Paper Currency, 2 6 Sparks’s Letters of Washington, 321. Cases, Wallace, Legal Tender 682. † States, Bank of History United ‡ Clifford, J.

Dissenting opinions. Opinion— another render another Cir nullify utterly nugatory. made cumstances it that Mr. Hamilton should necessary examine after the at Consti phrase very early period and the he is as tution was definition adopted, gave follows: “All means requisite fairly applicable the attainment of the end of such which are not pre cluded restrictions and the Con exceptions specified stitution, and not to the essential ends of political contrary exam-, later society.”. Twenty-five years question ined Oobrt* and settled, Supreme authoritatively Chief Justice His words “Let were: opinion. giving the end be it be let within of the Con scope legitimate, stitution, and all means which are which are appropriate, to that and which are not end, plainly adapted prohibited Constitution, but consistent with the letter and spirit are constitutional.” the same definition was

Substantially adopted by he Chief Justice the former in which case, gave, present and there is contained in opinion court, nothing the Federal sanction to any reports giving slightest definition of broader those Take the definition given words.. Mr. Hamilton, there is which, broadest, if perhaps, difference, still it is obvious that it would no give countenance whatever to the theory pass- Congress, a law execute' to one Constitution, express ing grant could authorize means which would another nullify express or render it for the end attainment of the grant, nugatory framers of the Constitution it should intended accomplish. to coin was vested in to

Authority money pro- Congresá vide a national standard of permanent valué, everywhere same, and to no variation what subject except Congress shall make under the thereof, to the value power regulate it is and not possible affirm, that the utter- hope any to ance will avail in the to coin argument, power is an money and if those express power, not premises Wheaton, v. Maryland, McCulloch 421.' Dec.

Dissenting opinions. Opinion Clifford, conceded shown can it canuot be so expand Congress other de- as to any express power implication nullify feat the which the to great purposes money power coin establish a standard of value was intended to accomplish. notes, conceded,

Government it is as a be issued may means the act money, because borrowing issuing be, * Day, Wallace, 113; Collector v. v. Maryland, Ward 12 Id. 418. Ct of.Clifford; J.

Dissenting opinions. Opinion— clause which confers same power prohibited those armies. virtue of raise and By support grants erect forts and con- may may magazines, power Congress manufacture arms and dóck-yards, struct navy-yards need- establish other war, munitions depots their but the cannot ful preservation, buildings without for that com- take property purpose private making as-the Constitution that owner, provides pensation shall not be takeu for use without public private properly compensation. just the Constitution can never be under

Legislative exercise of a extended to the powrer granted rightfully it makes difference to that which no nor prohibited, or as an whether the prohibition express implied, implied is as effectual to ascertained, when once 'prohibition, negative as that is the rule one expressed; legislate being right laws to carry passing express powers Congress, execution, cannot select means as into requisite granted to the attainment of applicable that purpose fairly are which restrictions or ehd, precluded exceptions Constitution, in the contained to the contrary ends society.* essential of political and it follows that these Concede acts of premises, cannot be as valid unless regarded question make held that the emissions a paper can can debts properly payment be'implied and that such coin when en- money, emissions, the power-to such a become the standard forced provision, Extended value under Constitution. discussion of the would seem to first branch be unneces- proposition the former case' justices abandoned sary, dissenting stated point frankly .de- dissenting opinion able were not to see in livered those they clauses, alone, warrant for the sufficient exercise of this standing on the their occasion referred Through organ power.” Avar, to declare suppress insurrection, States, History of tlie Bank of the United Legal Dec. 615 Tender Cases. Dissenting opinions. Opinion Clifford, o'f J. armies, raise and to and maintain a support provide navy, (cid:127)

to borrow to debts of the and Union, money, pay pro- welfare, vide for the common defence and as grants general of in conferred clauses of the Constitution. separate was then in Reference made terms to the very appropriate that and the con- exigencies treasury during period (cid:127) clusion reached, expressed appears though interrogatively, that the was to be notes provision making one as towards necessary pur- proper conducing debts, armies, pose borrowing money, paying raising -as in insurrection,” another or, suppressing expressed of the same as part opinion, provision regarded to enable the borrow “necessary proper on war.”* carry money in intimations are made one or more of

Suggestions as- State courts that the the.opinions given be vindicated as sumed by may Congress properly implied to coin inasmuch as but that money, assump- was not the in case, tion of the dissent the former ground as the court is not referred to case where a court any has acts of affirming validity question does, to rest their ventured decision that it upon, theory, to be the discussion that necessary appear protract point. are not notes declared the acts of to be

Such value, if were the would a standard be they provision to the notes as were the impart quality powerless the alchemist to convert chalk into or the processes gold, of the mechanic a machine contrivances organize motion. and silver were Gold perpetual adopted give even before value, civil the standard governments have been as such to they always regarded organized, and it is time, safe to affirm that will con present universal consent, tinue to be such spite legislative and of decisions. notes, enactments or the judicial Treasury called what name be, Iiuskisson, as stated Mr. that the com is not money only mon measureand commonrepresentative commodi of other also the ties, but common and Who universal equivalent. ever whoever sells, receives buys, such gives, quantity or silver as is to the article or pure gold equivalent bought sold; or if or receives he instead of he'gives paper money, receives which is or that valuable as it gives only stipulates of a payment or given quantity gold silver.†. n “Most said Mr. unquestionably,” Webster,‡' “there is no tender, there can be no legal in this tender, legal country, under the authority other, but government, any and silver. . . This . is a gold constitutional principle, per and of the fectly plain very ad importance.” highest He. mitted no that such was express prohibition contained in the Constitution, and then proceeded : “As has say Congress no to it in this power granted but to coin respect money the value of regulate coins, it no has foreign clearly to substitute paper else for coin aas tender in anything of debts and in payment of contracts,” discharge adding “ has exercised the Congress in both its power fully branches. It has coined and still it, chins it has the value of regulated coins and still their foreign regulates value. The tender, therefore, toe constitutional STANDARD OR VALUE, IS ESTABLISHED AND CANNOT BE OVER he Beyond was peradventuro opinion THROWN.” at rates gold silver, fixed constituted Congress, * Hepburn Griswold, Wallace, 8 v. C08. 22 Pamphlets, Financial 580. Works, † Webster’s ‡ Dec; Clifford,

Dissenting opinions. Opinion' J. nor the neither value, and that standard standard in its other to establish States had authority place.* this court decisive have been

Views expressed by equally remarks were question case where the pertinent were certified Certain questions presented decision.† of an in the trial arose in the Circuit Court here which the defendant was with in which having charged dictment from a into the United States foreign place, brought false, and sell certain utter, forged, intent to publish, pass, and counterfeited coins, made, counterfeit forged, at the of the coins struck and similitude resemblance ' the trial whether raised at were mint. Doubts was the iudietmeut law which on tó had pass were acts made that the charged founded. Objection if at such, in trafile, and, punishable, a fraud n to that law. Kesponsive under State suggestion all, rather of the section appertain provisions court say an trust invested the Con execution important fulfil that trust on the tó stitution, obligation and the trust duty namely, part government, metallicstandard pure maintaining creating uniform Union; that' the value throughout coining its value to Con and of delegated regulating money of very Constitution purpose creating by gress and such a standard purity uniformity and preserving which was foreseen on account 'value,and impossibility and the confusion inequalities of otherwise preventing different, views of incident to policy necessarily difr to bear on this would be communities brought subject. ferent thus to coin being money given Congress, it must with it the cor on necessity, carry public founded^ the creature of that object relative protecting follow as to the Appropriate suggestions right power.” measures to counterfeits exclude adopt government coin from substituted others the true being by prevent States v. Marigold, Howard, 4 Id. 280. United † 'Dissenting Clifford, opinions. Opinion J.

of no intrinsic and the value, the opinion’ justice delivering then emitted a cir proceeds say, Congress “having medium, standard value indispensable pur culating and for the action of the poses community itself, authorized bound accordingly debasement and the de duty prevent expulsion struction of the confidence and convenience general influx and substitution of a coin in lieu the con spurious stitutional currency.”. decisive views were the court six

Equally expressed by earlier, in the case of v. Breedlove* in which the Gwin years of the court was delivered the late Mr. opinion Justice than Catron, whom no who ever sat in the court was justice more of an on a net opposed expression opinion point involved the record.

No State shall coin credit, emit bills of or make money, but and silver a tender in anything gold payment debt.s. These said Mr. Justice associ prohibitions, Washington,† ated with the to coin powers granted the value thereof and of coin, most ob regulate foreign constitute members of the same viously family, being upon the same the same This subject governed by policy. said learned fixed and policy, justice,was provide uniform standard of value States, United throughout which the between the commercial and other citi dealings zens or between them and as well as the thereof, foreigners, transactions of the should be moneyed government, regu so well chosen and so cannot be lated. explicit Language Mr. misunderstood, and the views Justice expressed by in the same case are more decisive. Ho said Johnson even make the Constitution to prohibition anything silver coin a tender in debts is express payment gold The framers of the universal. Constitution regarded and that as an evil to be modification, without repelled therefore left to be inferred or deduced from have nothing on construction subject^‡

* Howard, 12 Wheaton, Saunders, Ogden 2 v. 265. Ib. 38. 288. ‡ † 619 Bee. 1870.] Clifford, J. Dissenting opinions. Opinion have been forty-five years, those Recorded opinions entitled to much are certainly and never they questioned, laid there principles especially weight, unani cases were affirmed two by down subsequently mous of this court.* opinion view here is also derived taken

Strong support last in which the Missouri, cited, case of v. opinion Craig certificates issued by was the Chief Justice. Loan given that were consideration the note in suit the State the defence was that the certificates were bills case, note and that the consideration of the was credit illegal. insisted the cer that defence that plaintiff Responsive were of credit, tificates not bills because had not been to which the court made that the tender, replied, credit and the laws emission of bills of enactment tender other; each distinct that operations, were independent Constitution; were forbidden that the evils both result did not from the of its solely quality paper debts; made a payment being quality one, be most but that was an essen pernicious might credit nor tial of bills of mischief quality resulting from such emissions.† Justice in the case of

Remarks Chief v. Sturges also be referred to as even more explicit Crowninshield‡ decisive to the same conclusion than embodied anything He first in vivid describes, in the other cases. colors, war in distress which followed the which our inde general was he said, established. was Paper issued, money, pendence lauds and other of no use to the creditor worthless property debts, a tender in made the time of payment in the contract was extended stipulated law. payment done, such extent an was so much Mischief more distrust and all general prevailed apprehended, 567; Marigold, Howard, Breedlove, 9 United States v. Gwin v. 2 Id 434; Peters, 38; Missouri, 4 Craig v. 317; 11 Kentucky, Peters, Ohio, Howard, Briscoe v. Bank of Fox v. † 433. Wheaton, ‡

820 Legal Tender Cases.

Dissenting —Opinion Clifford, J. opinions man man and was confidence destroyed. Special between reference was made to those the Chief Justice by grievances it was because insisted that the to laws im prohibition pass of contracts to be confined pairing obligatiou ought the couvt to matters that but the court description, was of a different and held that the Convention intended opinion, to a establish that contracts should be in great principle, “ violable, that the was intended to provision prohibit means which the same mischief be use might pro, He duced.” admitted that that intended provision issue of as that evil was reme prevent paper money, died and the the clause practice prohibited by forbidding “ the States to emit bills of credit,” inse'rte'd in the Consti tution for that and he expressly also admitted that purpose, to emit the' bills credit prohibition was- not intended to n restrain the from debtors to States their enabling discharge debts tender of of no real value property to the cred itor, because for that also subject particular provision made” in Constitution; but he added, “Nothing GOLD AND COIN CAN SILVER BE MADE A TENDER IN OE PAYMENT DEBTS.”* of the kind are Utterances found throughout reported court, decisions but there is not a-sentence or word found within those volumes, organization the court to the of the acts of passage Congress question, theorv. support opposite

Power, as remarked, Defore was vested in the Congress under the Confederation to borrow and emit bills credit, and. shows history that the to emit such bills had been before the Convention which exercised^ framed Constitution to an assembled, amount exceeding Still the $350,000,000.† draft of re Constitution, as contained the words “and ported, to emit bills” appended Crowninshield, Sturges v. Wheaton, 4 Constitution, 2 Story 249; on the 3d ed. v. Briscoe of Kentucky, † Bank Peters, 337; 1 Jefferson’s Correspondence, 401; American Almanac 1830, p. 183. Dec. i Clifford,

Dissenting J. opinions. Opinion— to borrow When to the clause money. authorizing reached, Martin, Mr. was made clause was motion says credit;” “to and his strike out the words emit bills of what followed affords the most account persuasive evidence that the Convention, nearly every convincing intended to an end the exercise of such it, member of put we he motion, Against power; says,' urged would deprivе power; improper would be a to establish that it novelty unprecedented gov which should not have such ernment that authority; to forward so far decide look into as to futurity impossible events that would render the exercise happen that might such a &c. But a absolutely necessary, majority lie wise said, event, the Convention, beyond being every evil admit to risk rather than political and being willing a emission to idea of refused any possible case, the paper a to wrere the to authority they trust the to the taxation, most unlimited and powers lavishing of which were to trust the blindly liberty mercy they willing Union, the citizens of State in the every property erased that clause they system.”* from of the forcible vindication the action Convention More made than could hardly expressed language and the warrants authority Judge Story Federalist^ statement that the there language employed “justified and is writer,” almost “attested every contemporary by facts” influence of at by beyond every attempt truth facts adverted to those contradiction. commen- Having “ that the same reasons which show tator proceeds say, to the States necessity denying regu- coin, force that not to be prove equal they ought lating a medium instead substitute of coin.” paper at liberty to. the kind wTerenot declared the Conti

Emissions of by a tender, to be Congress passed nental that be tender pay resolution declaring ought debts, that refusal public ment private Debates, Federalist, 44. Elliott’s No. † -Ot. Oases. Dissenting Clifford, opinions. Opinion of J.

receive the tender to be an ought extinguishment debt, recommended the States to such laws. pass They even went further and declared whoever should refuse to receive or silver be deemed an paper gold should but our commentator enemy liberty; public says these far terror, measures of violence and so aiding circulation of led on still further paper, depreciation.* New emissions and new measures were followed adopted credit faith for its re give paper pledging public Effort followed effort in that demption. direction until the idea of at was abandoned. par one redemption Forty was offered and the States were the bills required report under that but few ot the bills old were ever re regulation, few ported, of course new contemplated notes were and the issued, bills in a brief ceased to period circulate, and in course of that died in the year quietly hands of their possessors.†

Bills of were credit made a tender the States, but all as well as those such, issued dead in Congress, hands of their before the possessors Convention assem- bled to frame the Constitution. Intelligent impartial belief in the such instructed, so theory men, framing their as well as for posterity themselves, vest such in .a either would or deliberately power, Congress States, the of their as a can never iti part perpetual system, in be secured the face the recorded my evi- judgment which the dences to the contrary political his- judicial affords. our Such evidence, so tory country persuasive is, must as it all to the con- ultimately bring convincing the clusion that neither nor the States can make Congress silver but or coin tender of debts. anything gold payment Exclusive to coin is vested in money Con- certainly “ but no amount can show that execut- gress, reasoning note and it to be taken in ing, promissory ordering pay- 20; 21; 3 Congress, History, 2 Journals of Id. 2 Pitkin’s 155-6.' Constitution, Story ed., 1359, 1360; 2 on the 3d 2 §§ † Pitkin’s Correspondence, 1 Jefferson’s History, 57; Dec. 1870.] Clifford,

Dissenting J. opinions. Opinion— aud debts is a ment species of public private coiniug money.”* is also found in refutation such the theory

Complete in which in the former the ease, justice dissenting opinion is not able who the states that he to deduce delivered opinion the laws in from that clause of the question pass admits, in which he without Constitution, the qualifica- notes a the such tion, provision making the contracts made does undoubtedly impair obligation therefore, to show before Extended passage.” argument, that the acts in the of contracts question- impair obligation made the before their admission unnecessary, passage as truth, short of the whole it leaves stops implication to be drawn that the contracts-is obligation subsequent such Contracts impaired by legislation. pay- after, ment of whether made before money, passage of such a if the contracts, promise expressed provision, dollars, amount pay specified money recog nized aud established the Constitution as the standard iii value, and act of Congress theory compels emissions, creditor to instead of the so accept paper and established, of such a recognized impairs obligation no contract, matter whether the contract was made before after the act creditor to such accept- compelling pay- ment, as is a Constitution in respect part contract, its terms entitles the creditor demand in the medium which the Constitution recognizes payment establishes the standard value. the word Constitu- dollar, Evidently employed established tion-, means money recognized vested in to coin money, express power regulate and of the framers of the coin, thereof value foreign as used word borrowed adopted having Constitution ordinance of the Continental 6th 1786, and of the in which was 8th 1785, August, of July, that the unit of the States should be Biiacted United money

* Constitution, on Pomeroy § 624 Clifford, opinions. Opinion of

Dissenting J. “ one dollar,” and that of account should be dol money lars as dollars, fractions of subsequently provided ordinance amint.* establishing . court, of recent decisions have es

Repeated date,† tablished the rule that contracts to coined dollars can pay be satisfied only of such which is payment money, to a decision that such notes those precisely de equivalent scribed in the acts of not the Congress'in question money are aud established Constitution the standard recognized of value, as established, so if the recognized contract is in will dollars, expressed satisfy any every contract aud between party party. Beyond question cases cited the fact all men recognize accepted through n world, metals; out the that value is inherent the precious such, that and silver are themselves values, gold being other best are being respects adapted purpose, ip value; measures these values are onlyproper deter mined and that form and are by-weight purity, impress certificates of value, absolute reliance worthy simply because the known aud faith of integrity good gov ” ernment which them in put circulation.‡ When the intent of the as to the medium of parties pay ment is in a contract, the court clearly expressed decide, Butler v. Horwitz, cited, above for the breach damages of it, whether made before or since the enactment of these laws, assessed so as to effect to that may properly give and no doubt is entertained iutent, that that rule is correct. notes, Parties contract accept payment treasury articles, or bank and if specific bills, do so they they contracted, bound the medium for which aecejDt the notes, articles, bills arc tendered provided specific on under day contract payment due, becomes it is clear such a if tender, seasonable aud sufficient in 225; Journals of Congress, 11 Id. 179. 1.0 Rodes, Wallace, 248; Bronson v Horwitz, v. 259; Butler Ib. Bank † Supervisors, v. Ib. 28. Dewing Sears, 379; Oregon, 73; v. 11 Id. Lane Co. v. 7 Id. v ‡ Willard Tayloe, Id. 568. n 625 Cases, Legal Dec. Tender^ Clifford, J. Dissenting opinions. Opinion— cases also Decided the action. defence to is a amount, good where the even further, hold, much the doctrine carry is the expressed -in promise is payable contract that, if the is a tender bank bills a tender of dollars, good in receiv to his it was made objections to whom placed party suff was not that the amount the it ground wholly ing icient.* clear that where contract and still it is all that,

Grant and the a certain sum of prom- monoy, is for the payment dollars, in or coined dollars, promisee, is ise expressed refuse to sees fit, lawfully payment any if he may accept a made silver, than other medium gold of that provision act of passed pursuance Congress to which vests coin Constitution power value thereof and coin. of foreign regulate money, and silver made a bo ten- coin gold Foreign to the value thereof is vested in as the der, power regulate as well as the value of the power regulate at the coius mint. fabricated stamped the new a as is such of evidence, theory body Opposed, whole of our constitutional period history, covering as conclusion, opposite unsupported tending historical fact, is a entitled to theory single any weight, it would seem that the advocates of theory ought it a fixed domicile' in the able to Constitution, bo or give it as a else be without to.abandon solid theory willing in that if behalf, constitutional foundation. con- Yagraney ceded, is a at this very certainly strong argument day, does not reside the Constitution at all, as if the otherwise, fact period eighty-five years since the Constitution was has elapsed adopted surely to have enabled advocates to discover its long enough able to to be out its home to those whose locality point researches have been less successful and whoso conscientious Georgia, Wheaton, 347; States v. Bank of United Bank 10 Thomp Wallace, 678; Noble, Riggs, Peters, 198; son v. 5 Robinson v. Wright 8 v. 554; Reid, Term, Perry, Pickering, 542; 3 Snow v. 9 2 Green leaf on Evid ence, § VOL. XII. Clifford, opinions. Opinion of J.

Dissenting as that, lead them to conclusion applied convictions a -without habitation or it is Constitution, myth name. . - can be referred enact such provision Unless to Con- or more express grauts some one means, necessary proper as the requisite gress, into execution, such powers express power carrying must be as un- that the conceded provision regarded usually that the it is not Constitution constitutional, pretended such power contains any express authorizing grant legis- cannot be exercised Con- Powers by lation. granted must that no are all agree powers certainly gress, such as are are expressed what fairly ap- except granted end means to attain the of a as requisite plicable oy, are words, in other necessary granted, yhioh into those are to cany expressed execution.* proper rules of construction, these Pressed irropealable ap- by those who maintain the Constitution, affirmative plied, discussion forced to submit a under speci- question one or more cases have intimated Courts fication. be from the implied question may express

the power inasmuch as no decided case is to coin money, of the court rests whore the to upon -referred judgment will be dismissed without further the suggestion ground, too one latitudinons proposition cpnsideration, involving the cases referred to refutation. Most of attempt to require to make such emissions a paper deduce to to from the borrow or from express power money, combined, war, declare or from the two as in to the power in the case which is now overruled. opinion dissenting ' conceded, exists it laws pass Authority, notes, issue based on the for the na treasury providing means credit, as proper tional necessary fulfilling to borrow nor can money, the end of it express power such when notes, at this issued day, doubted by Wheaton, 326; Lessee, 1 McCulloch Maryland, Martin v. Hunter’s v. (3d 1 Story ed.), on the Constitution 405; Id. § Dee. Ca&es. Clifford,

Dissenting opinions. Opinion J. circulate as credit proper maj7 authority, lawfully currency, and that .in that conventional character, be law may, they if the act issue so fully their employed, authorizing provides, duties, and all the exactions taxes, pay public required into the national 'Public paid creditors treasury. may also be in such paid consent, their own they currency be used in all other where the iu may cases, such payment since the United States became an nation. independent for a loan of twelve Subscriptions millions dollars were, 4th 1790, on the be directed to at the opened August, to be made in certificates issued for the treasury, payable debt to their value.* Measures of the kind specie according in were succession for several and repeated laws rapid years, iu form loans one or another to have providing appear been the mode of preferred until the money, 30th borrowing of June, the was 1812, when first act “to authorize passed the issue of treasury notes.”†

Loans had been iu in authorized previously repeated as will be stances, seen the references, to which by following more be many might added.‡ Large, 1 Stat. at 139. 2 Stat Large, at 766 † 142; 187; 345; 607, 60; 245; Id Ib. Ib. 433; Ib. Ib. 2 Id. Ib. Ib. ‡.

349; 610; Ib. 656; Ib. Ib. Clifford,

Dissenting opinions. Opinion J. made of the was to the first Earnest passage opposition the notes, act of issue treasury Congress authorizing measure and it remarked that the be prevailed, on the was ever after as set vote occasion having regarded as to' an act. tled of such question constitutionality of dollars wore to be issued that Five millions directed with the act, Secretary Treasury, approbation cause of the such President, empowered portion as deem issued at the notes ho might expedient par lo choose to such creditors oilierpersons may public suchnotesin it never occurred to payment,” any receive having even a creditor could bo to receive' oue that public compelled his own consent. notes except by Twenty payment such issues of notes authorized other by Congress sutíb next after of that course fifty years passage ,a such of the acts notes and before act making passage acts, one such tender, twenty every prior being contains either im all, words express by necessary i\n an new constitu equally plication, negation decisive emissions, that can make tional theory paper vajue a standard of or a either tender.* Superadded ex conceded fact the Constitution no contains [hat words to such a and unbro press support theory, long Id, 64; 7G5; 161; 213, 202; Ib. 766; 801; 4 2 Id. Ib. 3 Id. Id.9 5 Id. 39; 474; 614; 581; 9 Id. ; ; ; Ib. Ib. 201; Ib. Ib. Ib. 469 Ib. 5 Id. 228 313; 118; 121; 259; Ib. 257; 179; 12 Id. Ib. Ib. 11 Id. Ib. Ib. Dec

Dissenting Clifford, opinions. Opinion J. so as to the force effect of ex expanded another nullify same press tbe it power instrument, seems to me that it to'be deemed final and conclusive that can .ought not constitute such notes or other emissions a paper constitutional standard value, make them a ten legal der in as it the payment covers especially period debts— of two the wars, creation of the second national foreign bank, financial revulsions greatest through (cid:127) our has ever country passed. the views expressed opinion

Guided dissenting in the former case it must be taken granted n em- feature acts placed question those, who phatically, enacted provision, of the measure to the further necessity money borrowing to and such appears army navy, maintaining assumed principal present opinion ground n court. also some of the Enough appears interrogative sentences of the to that the learned show opinion dissenting who delivered the dissent justice it to very intended place the same largely upon ground. need be it would show that

Nothing added, seem, to to make such notes a and a power standard value tender caunot beclerived from the borrow to power money, without it to so-expanding by implication nullify to coin nor without value, power money regulate to borrow extending scope operation an never framers money object contemplated by remains Constitution; and if it so, then iuqnire war,' whether from the declare bemay implied armies; and maintain a to raise support provide or “to to borrow enable the navy, money as the is in the war,” on carry phrase dissenting opinion in the former case. war, the sinews of but the

Money undoubtedly Constitution, is oíú-war, to raise under the carry com- not an and whoever implied adopts theory power, - error. declare mits constitutional great treas- war aud moneys.iu.the' Congress may appropriate Legal Tender Cases. Clifford, of J. Dissenting opinidns. Opinion — for or coin war, money on the to may ury carry Congress the same to or amount any borrow purpose, money im- taxes, duties, and collect may lay purpose, Congress the or may dispose excises to replenish treasury, posts,-and of or other lands public property belonging ex- in the exercise States, and fact, United by command whole Constitution, press powers to of the sustain wealth and substance people public the war to a successful termination. credit prosecute de- conducted means Two wars successfully foreign sources, it is not that those rived from those doubted enable to maintain the will always express powers Congress every credit and in defray public expenses national even the national in- arise, which may though emergency assailed should be combined forces of dependence therefore, civilized All remarks, all the rest of the world. in an favor of the nature entreaty implied appeal, defence or to to fulfil the national purpose great words, are a raise to mere waste of war, money prosecute means to as the most accom- powerful comprehensive made are found appeal purpose plish to and collect powers vested lay express duties, excises without limitation as to taxes, imposts, limitation, to borrow also without and to amount, money lands, dispose coin money, public appropriate public treasury purpose. -moneys those as the the light suggestions, question Weighed ex- be, it is that the should plain, under discussion only an supply such unnecessary ercise of implied but that the framers the Constitution -war, the sinews im- and vital matte'- of such intended to trust never great defence or means for the national as that of raising portance whatever, a war to any implication for the prosecution weak- bitter learned from experience great had for independence war during ness the Confederation Influenced such want of express powers. consisted Constitution not framers those considerations taxes, duties, and collect lay authorized Dec.

Dissenting opinions. Opinion Clifford, J. and excises to imposts, extent, but also to any еvery coin money borrow without limitation as to amount, that the that to the im- showing argument deny plied power to make emissions a tender will be paper cripple chimera, is mere government, without any solid constitutional foundation for its support. as the

Comprehensive?,however, of Federal taxa- tion is, without limitation to amount, still there are being some as to the manner of its exercise, and some restrictions as to the to which exceptions objects may applied. Bills for. revenue must in the raising House of originate Kepresentatives; duties, and excises -must be uni- imposts, form States; the United direct taxes must be throughout numbers; to .apportioned of commerce according regulations and revenue shall not any give preference ports one State over those of another; nor shall vessels bound to or from one State be clear, to or enter, duties obliged pay another; in nor or tax be laid on articles ex- any duty shall State. ported any for war made in

Preparation but neither peace, may for such nor the actual existence necessity preparation of-war can have the effect to re or those supersede abrogate or strictions, to tax articles ex empower Congress from taxation cepted Constitution. Implied excep tions also exist, of Federal taxation as limiting well as that States.,, when an that exception- ascertained the within it are as objects falling character.is shielded as from taxation those within an effectually falling reason that the express.exception, plain of the United States be one of acknowledged by enumerated from which it follows powers,” necessarily not granted exercised.* powers cannot.be be raised taxes, duties, Moneys may ex- imposts, cises to on war as well as to debt or carry pay public for the common defence and welfare, but provide general no to’that use can be made for á appropriation money Wheaton, Maryland; McCulloch v. Ot. Clifford,

Dissenting J. opinions. Opinion— nor can than two period longer years, Congress, exercising taxes for that abro- other, purpose, any levy restrictions, limita- exceptions, those Supersede gate are tion's’ such Constitution, part as'they and.as in war rule would a3 peace, obligatory other restriction, limita- subvert, war, time every exception, Constitution, and invest Con- tion, and prohibition even with unlimited surpassing possessed power, gress Parliament. .the British on with- war, also borrow money carry limitation, and in that_express power may out exercising means for notes as issue treasury requisite carrying execution, cannot consti- into express of value nor make them a such notes tute standard nor in time of war at neither titae tender, peace, of which conclusive that the ex- reasons, least two either the Constitution not warranted by ercise of such : power is Convention Because published proceedings (1) of the State conven- Constitution, which adopted who ratified it, participated those show tions such intended confer any power. deliberations those ncveif would exist, such a if admitted Because powbr, nullify (2) to coin effect operation express power the" money, coin; as it and of the value thereof would foreign regulate in medium fiie gold a silver place substitute paper coin, itself, coin, compared no possesses either the constitutional or is not com- value, money, a is sense, pay but never only promise mercial money, even as less, much domestic and.often worth exchange, par, and never either as is always fluctuating acknowledged or standard of value iu a medium of exchange any a foreign American commerce. market known to it is notes, conceded, such exists without Power to issue is whether the framers limitation, question but intended exercise of that Congress, Constitution whether in borrow or or money, peace the power'to power to constitute paper emissions, war, empowered should and make the same of'value, a a standard kind, of any Dec. Clifford,

Dissenting J. opinions. Opinion— even a Mere or convenience, of debts. payment be the but test, in a cannot case, financial necessity single in- of the Constitution is what did the framers question and ratified ? tend at the time the instrument was adopted last of the kind mentioned —that Constitutional powers, a standard of value to ordain is, provide power for a tender —are to no medium subject circulating and in are the same in mutations of kind. peace They when the war. What the meant Constitu grants mean and their still, tion was and ratified adopted they can as described in the never be meaning except changed amendments, article the Constitution fifth providing “ and in is a law for rulers and war peace, people, equally all of men covers with shield its classes protection and under circumstances.”* never to be enlarged beyond

Delegated power ought is and that rule terms, emphatically appli fair scope in the of the Constitution. Restrictions cable. construction or even inconvenient, at times be embarrassing, remove the amendment is vested difficulty by and if do not exercise it the presumption people, is a less evil than the mischief to is the inconvenience the restriction should be removed and if be apprehended inconvenience extended, or that is existing and it should never be evils; least of two forgotten and established the Con that the ordained government of limited and enumerated stitution pow the true from ers,” and import depart meaning new establish a Constitution to do those powers to do for have not choseu them what they for the people functions of desert legislator and to selves, usurp law., drawu of an Arguments those expounder here to inconvenience, Story, ought says Judge impolicy is to declare sound as “the principle be of no weight, and to est, obey.”† to follow ita lex scripta Wallace, Milligan, 4 120. parte Ex ed., Constitution, 426. 3d Story 1 on § † Field, Dissenting opinions. Opinion J.

For these reasons am of the I *bat the opinion judgment in each of eases before the court should be reversed. the.

Mr. FIELD, Justice dissenting:

Whilst I in Chief views ex- agree Justice in-his in these pressed cases, the opinion importance great which I attach to the tender induces me question some further on present considerations the subject. has beeu heard in from counsel these

Nothing cases, and from the which has nothing present court, majority created a'doubt mind of the correctness my judg ment'rendered in case v. or of Hepburn Griswold* conclusions expressed opinion majority then court as constituted. That was reached judgment after were repeated arguments heard from able eminent and'after counsel, raised on had either side been every point of extended subject deliberation. case that were iuvolved questions also presented in several other and had cases, been elaborately argued them. It is not has that no case ever extravagant say been decided this court since organization, presented more questions more fully argued considered. It was that a maturely hoped thus judgment reached would not be disturbed. It was lightly that hoped had settled forever under a ordained, Constitution other “to establish among things, justice,” legislation giv- one his person right ing discharge obligations another nominal instead of actual never fulfilment, could be justified.

I shall not comment the causes led to a which have of that reversal judgment.. patent every one. They will observe Chief the associ- .1 Justice and simply ate who constituted the of the court justices, when majority was rendered, still adhere to their former judgment convictions. To them reasons for the decision original are as now were when that cogent convincing

* Wallace, Dec Legal Cases. Tender Field, Dissenting opinions. Opinion of J. — decision and to them its as applied pronounced; justice, then. to is as clear as was contracts, past to-day In the cases us the order stated, now before questions of the counsel, for the of do court, present argument and de- with entire the questions actually argued accuracy act cided. As Is the of Con- stated, the tire: 1st. questions as to act, known tender constitutional as the gress, legal it valid as contracts made before its 2d. Is appli- passage? cable to transactions since passage? act is the

The act thus as the tender act designated of the issue 1862, of 25th, February authorizing of United for their notes, States redemption providing and for debt of United funding, funding floating draw as would seem to States;* stated, and the questions, act; whereas, of the entire into discussion validity intended for argument, actually argued questions 1st, to the of that decided, validity provision relate — declares that these shall be notes the act debts, as to debts and payment applied private debts of the contracted previous passage act; and of the as 2d, of the validity provision applied made. The case of Parker contracts to similar subsequently the consideration of the first aud Davis iuvolves question; v. Lee is of Knox v. tl>e сase supposed by majority court to question. present the.second Wasraised validity provisions

No question (cid:127) notes, act the issue of the authorizing making States; dues to nor do I receivable thorn per- the^United at could be made that any objection justly day ceive The issue of the was a exer- theOf suit the convenience or ability amounts to varying form, a convenient been lender, has found experience by secure the readiest acceptance best calculated to and the one the the of has been and the loan. It practice gov- largest loans character ernment to use notes of this raising their in its an from period history, supplies early obtaining third in all cases parties optional. by being receipt for an act which June, 1812, In provided Congress passed the of issue of authorized notes, Secretary the treasury “to of President, with the Treasury, approbation ” time under as the not such stuns time, borrow par, “ on credit of such President think expedient, might notes.”* for the 1813, In another act February, passed “ notes, of of

issue the amount treasury money declaring or obtained virtue of the issued under borrowed notes” section be a second should authorized part money under a act to be borrowed of the same previous session.† are numerous other acts of a on our similar character There than I More believe, were twenty, passed statute-books. previous aet.‡ Large, Large, 2 766. 2 Stat. at Stat. at 801. † Slat, treasury issue of 2 Congress authorizing Acts notes: at ‡ 25, 801, 30, 766, 1812; February ; Id.

Large, approved approved June 1813 100, 4, 1814; Large, 161, March approved 3 Stat. at Id. December approved 1814; 26, 213, 24, 1815; 5 approved February 201, Id. Large, ap Stat. at 323, 12, ; 228, approved May 21, ; approved October Id Id proved 1837 1833 2, 1839; 370, 31, 411, approved 1810; Id. March approved March Id. Feb 15, 473, 469, 1841; January Id. ruary approved 31,1812; approved April Id. 31, 581, 15, 1842; 1842; 614, approved August 3, Id. approved Id. March ; Large, 39, July 22,1846 ; 64, 9 Stat. at approved 1813 approved August Id. 118, 1846; 6, approved 28,1847 ; Id. January Large, 257, approved Stat at 430, 1857; 3d, 23. March approved Id. December Dee. Field, J. opinions. Opinion

Dissenting aas was authorized the notes issue all of them the In or paying supplies, onobtaining money, means borrowing the re- them in all of States, United debts was voluntary. purely third parties notes ceipt 1812, Secretary act, June, in the first Thus, notes, on to borrow authorized, Treasury ex- think President but to issue such notes might the United or debts due supplies pedient payment or .other might creditors persons” States “ such public at Similar pro- such notesin par” choose receive payment are 1862, the 25th, differ from authorized the notes treasury by which have in the fact acts t'o I referred, previous they do do not bear interest and not on their face designate at which shall features affect period paid, the value in market but do their not their essential change therefore, as be, There cannot stated, character. already at the notes,t this to issue of th.e nor objection day any just in form for to their circulation. adaptation general can their Nor to made re- objection there any being dues the to United Their States. ceivable receivability demands of respect application this and demands it, of the against just principle government, to the which is demands individuals each applied against shall that cross-demands offset and other, each other satisfy of their to the extent amounts. No respective rights are in any respect third affected parties application rule and the here, of the purchasing borrowing power (cid:127) Field,

Dissenting opinions. Opinion J increased them re- incidents to borrow possessed individuals, is and not to receive a definition. Nor is it larger different from the often and granted public private corpora- The it is tions. true, grant, usually these accompanied Dec. opinions Field,

Dissenting J. —Opinion amount to be borrowed, cases with limitations to the latter shall and a to which objects money designation nature which in no affect the respect applied—limitations borrow have The terms money” power: “power ,one all these cases, the same and not meaning meaning individuals, when used when another corpo- granted and still a different one when rations, possessed by Congress. a mean a to contract for loan of They money to be considerations between parties. upon agreed amount of the the time of interest loan, repayment, shall ex- bear, form which the shall be obligation are matters between pressed simply arrangement is no or inci- no one It concern else. parties. They part a dent of contract of this that the or inter- character rights matter, ests of third shall be in to the parties, any strangers when the The transaction affected. completed respect has has with his and the borrower lender parted money, his and in the time, at promise repaj’tnent given securities between manner, with the them. stipulated As an for its inducement loan, security repay- ment, the borrower of course such may pledge property his revenues, annex to such promises privi- rights as he- His in this stipulations respect leges possess. limited to his own necessarily property, rights, privi- and cannot extend to th'ose of other leges, persons. an

Now, individual, whether a borrower —be the borrower bonds, or the annex to the corporation, .government—can other bor- notes, evidences of debt given rowed, serve as means of will any quality by they de- contracts of other must satisfying necessarily parties, whether the pend borrower upon possesses any question to interfere with and determine how contracts, such right shall be satisfied. The the borrower right rests no different than the respect foundation right if interfere with And other of third parties. property it will contended, not be as I I assume it will think may be, make that the borrower order to possesses any right, visible loan, interfere with the property tangible Tender Cases. Leoal Field,

Disj-enting opinions. Opinion J. — third I do not it can that how he contended parties, perceive he their when it has to interfere with any property right in the form exists of contracts. A part property large and the form, commercial exists in every prin- people which excludes with another’s from ciple meddling stranger which visible him excludes property equally tangible, it of con- with when the form meddling existing tracts. an

That individual or a possesses corporation .borrowing to annex to his evidences of no indebtedness power enabled holder will his change quality w'hich.the loan, contracts third is ad parties, strangers ; it is contended mitted such Congress possesses in addition to the because, borrow power pp-wer express there is a clause in the Constitution author money, “ izes make all laws necessary.and proper” execution of the enumerated.- This clause neither powers nor diminishes the expressly powers. augments designated states in terms It what w'ould have equally to do without its insertion had Constitution. right It is that a to do a act geqeral principle power particular includes all the adopt ordinary appropriate, its means for execution. “Had Constitution,” says Hamilton, of this Federalist, been clause, speaking this head, silent on there no c'an be doubt that par as a ticular means powers requisite oCexecuting general have resulted wou]d powers government by-unavoid No axiom able is more implication. established i-n clearly reason, or in law whenever the end is required authorized; means whenever to do a general power particular every thing given, necessary doing is included.”* without the clause in subsidiary power existing ques- insertion Constitution was no

tion, doubt intended, Mr. Hamilton, as observed “all re- prevent cavilling in those wdio finements” thereafter feel a might disposition

* The Federalist, No. '

Dec. Field,

Dissenting opinions. Opinion of J. authorities and evade the ; to curtail Union legitimate to'indicate the true add, I and limits also, may: sphere of the implied powers. would

But existed subsidiary though have. would have withopt clause, there been the same per- now, to what laws are nec- question recurring petually for the execution enu- essary'and proper expressly merated powers. times, clause in at

The has different particular question discussion in elaborate and cabinets, undergone Congress, Its was much courts. debated in the first meaning a national proposition incorporate Congress ujpon bank, and afterwards in the cabinet of when Washington, measure was for his Mr. Jefferson, presented approval. and State, then Mr. then Secretary Hamilton, Secretary differed their construction of ’the Treasury, widely each his views in an and elaborate clause, gave opinion. ” “ held that the word Mr. Jefferson restricted the necessary to the use of means, those without which would be thus nugatory, making grant necessary equiv- alent to indispensable. favored a more

Mr. Hamilton liberal, in my judgment,, and. more contended that the just .interpretation, terms- .a ” “ meant no more than that the necessary proper meas- must have an obvious ures relation adopted as means to- “ “ end If the intended. he be end,” said, com- clearly within of the any if specified powers, prehended have an obvious to that end, measure relation and is not of the any provisiоn forbidden by particular Constitution, deemed to come within be it safely of the compass “ There is he also,” added, national authority.” this which further criterion assist the may materially decision. measure Does the abridge proposed pre-existing right individual or of ? If it does State, any not, there is a any in favor of its strong presumption constitutionality; declared relations be object may slighter permitted it; to turn the scale.” From criterion thus indicated - VOL, XII. Meld,

Dissenting opinions. Opinion of J. would seem that the was statesman distinguished opinion that measure which did interfere with a pre-existing right a State or an individual would not constitutional. The Mr. Hamilton substan- by interpretation given v. Marshall, followed Chief tially Justice McCulloch by The the court, State he said Maryland, when, speaking that if the end to be of Con-' accomplished by legislation Constitution, within of the gress scope legitimate, “ all the means are which are appropriate, plainly end, and which are adapted are but prohibited, consistent with letter and Constitution, spirit constitutional.” Chief Justice not, true, did is terms declare that which is not thus legislation appropriate, unconstitutional, to a lawful is adapted end, plainly him; such advanced import plain argument by that, conclusion must also follow principle character, when of a au- legislation particular specially thorized, such is inhibited. opposite legislation Tested the rule Mr. rule Hamilton, given by laid thus down Mr. court Chief Justice through the Marshall, of a to the of the annexing quality promises borrowed, for which will enable the government as holder to use them a means of the demands of satisfying cannot be as third sustained the exercise parties, of an ap- means of That is propriate borrowing. only appropriate has which some relation of fitness to an end. Borrowing, which, as is transaction on stated, .side, one the already by his lender and on the other the parts borrower money, it in to such at time form such as agrees repay may stipulated. not a of the of contract Though necessary part usual is for the borrower to offes securities borrowing, the of the The repayment loan. fitness which would render .a means to this transaction considered must thus appropriate have the to terms which are the respect contract, essential to to the- or . securities the borrower as an which furnish inducement to the does loan. Tbr tender of legal quality not touch the terms of does the contract of nor borrowing, :it stand as a A the loan. supposes security security Dec. 1870.] Field,

Dissenting opinions. Opinion of J. or interest which some is sub- right tiling pledged, the of the to borrower. disposition ject has much confusion on

There been from a subject to between the of failure adaptation particular distinguish or effect, to an end aud the effect, means of those supposed the results desired mealns by producing government. the is stated thus: of object

The is to argument borrowing the of the tender funds; raise aunexing quality legal induces nment more notes of parties gove? readily result them; desired loan upon government— thus funds—is accomplished; therefore, the acquisition tender an of the quality appropriate the annexing the execution to borrow. But it is means would as that the same reasoning justify, appropriate evident of this execution measures power, to the which means funds. The required result annex- obtaining would which the notes of the aof provision government ing as a free ticket serve public should 'conveyances into or for places the country, ingress public amusement, would entitle holder to a which out of percentage his corporations, revenues private entire exempt prop- well as the notes themselves, State and erty, munici- taxation, would produce ready pal acceptance notes. the advocate of most liberal But construction would these measures, or similar hardly pretend measures of third would be property parties, touching appropriate a means to the execution of the borrow. In- invasion there no deed, rights not thus be might third sanctioned parties allowance holder with them their liabilities. For charge pre-existing moneys or other desired parties, supplies required for the use the the or provision added navy, army nothing of the notes. value or Their-borrowing purchasing Leóal Field, J.

Dissenting opinions. Opinion— law of a universal cur- depended, by general the confi- clause, the upon rency, Legal Dec. Tender Cases. Field,

Dissenting of opinions. Opinion J. — or or commodities for or shall offer to sell any gold goods whatsoever and silver other of coins or species money any said continental bills, refuse the same for the every to sell an of to be deemed the libertj' such enemy person ought value of the so to forfeit the money these United States so sold or offered land, or house, commodity exchanged, to the for sale. And it is recommended legislatures such forfeitures and enact laws States to inflicting respective will other such prevent on offenders aforesaid penalties to the That it be recommeudéd pernicious legis- practices. to make laws the bills latures of the United States pass a lawful tender of credit issued Congress payments an of a refusal thereof extin- debts,-and public private debts; such that debts payable sterling guishment rate with continental dollars at the be discharged and that in of all other 4s. dollar, 6cif per discharge sterling continental dollars at the rate fixed debts and contracts pass for. the value milled States Spanish respective dollars.” to the recommen-

The several States responded promptly made bills a dations of tender.for receive them an debts and the refusal to extinguishment the debt. n a circular ad- issued, 1779, also September, on in which showed dressed people subject, they bills, would be able redeem that the United States to. that there and they repelled indignation suggestion “ The faith. violation public pride could idea; said “revolts from the address, her America,” made, for what these emissions were know citizens purposes their faith have redemption repeatedly plighted them; are to be found man’s every possession, they redeemed; man is interested'in their being every ere- American entertain therefore, must, opinion high due on who suppose people capable believing, ..dulity honor, will, faith, all America reflection,-that against and the interest of all be ever America, prevailed só so countenance, ruinous, permit disgraceful support, Field, Dissenting opinions. Opinion J. We

measure. are convinced that the efforts and arts of our will enemies us to draw into this wanting humiliating situation. malice and the contemptible Impelled by at not able chagrin disappointment suggestions being to bend our necks to the endeavor to force will yoke, they or seduce us to commit sin in order unpardonable us to we due to and that it, subject punishment nations; be a thenceforth and a the reproach byword among of these the of na value Apprised consequences, knowing a of im character, tional with due the sense impressed mutable laws of it is that honor, justice impossible America should think without horror of such an execrable deed.”* in this

Yet of the noble contained ad- sentiments spite which dress, bears name of then honored John Jay, of President and afterwards the first Chief Justice Congress of this and in court, tender spite provisions legal harsh penal statutes, universal law of prevailed. currency followed until it so Depreciation became very great idea of at was abandoned. redemption par to take the bills proposed up then by issuing new bills on of the several States, guaranteed by the.credit States, United one-twentieth amount exceeding old the new bills draw re issue, interest and be in six deemable But the scheme failed the bills years. became, 1780, of so little value that ceased to during they circulate and died,” the historian quietly says period, “ hands of their possessors.”† it is within

And of us that memory during rebellion the notes of late under States issued United Tender Act rose in value the market as the Legal successes of our arms evidence of an termination gave early war, fell in value with triumph every of the Confederate forces. ‍‌‌‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌​​‌​‌​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‍ No de- legislation these notes instead of claring money representatives Congress, p. 5 Journals 851. This Jay address was written Mr. Justices, 1, Lives Times (See Flanders’s of tlie p. Chief vol. 256.) 2, † History, p. Pitkin’s vol. Dec. Field,

Dissenting opinions. Opinion J. or credit alter could this result one tittle. jot Men measured their value not declaration, by congressional which could not alter nature of the con- things, fidence in their ultimate reposed payment.

Without the tender the notes would legal provision have circulated well and answered all the equally purposes direct benefit from that resulting —the stated, from the it con- provision arising, already ability ferred debtors them unscrupulous discharge The notes of banks circulated previous obligations. State without possessing quality supplied currency so as confidence in the people just long of-the ability banks to redeem the notes continued. The notes issued by the national bauk associations under the war, during authority $300,000,000, Congress, amounting nfevermade tender, circulated equally well.with the notes of United States. Neither their nor utility circulation was their diminished the ab- anj' degree by sence of rose and fell They quality. under the same

market influences and to the same precisely as the notes extent of the United which States, possessed this quality. is

It to foreign, however, to discuss my the argument of the tender The utility clause. legal of measure utility not the of subject judicial nor, as cognizance, already intimated, the test of its But the rela- constitutionality. the of measure as tion a means an end, to authorized by Constitution, the is a of such and subject cognizance, its test of when it is not constitutionality, prohibited by any of that provision and is specific instrument, consistent with “ letter and its said spirit. Hamilton, degree,” which a measure is can never be a test necessary of to it. That must be a matter of right adopt opinion, and can be a test of The relation only between the expediency. means and the end, between the nature of á means employed toward the. execution of the and of that power object must the criterion of not the power, unconstitutionality; more or less of necessity utility.” Legal Field, J.

Dissenting opinions. Opinion If so, exercise, this if could not only it unrestricted of choice undoubtedly may, liberty among the means which are and adapted appropriate plainly of an execution but could also without express power, judge, its to cases conclusions question subject involving being what means are thus private adapted, rights, appropriate our be, would not what was intended be, one limited, one unlimited powers.

Of course must in the first instance and inquire determine for itself not but the fitness expediency, to the end intended, of measure every adopted by legis- lation. But the this tribunal to revise these deter- in cases minations has been uni- private involving rights asserted, since the formation Constitution formly statesmen this ablest day, jurists country. I have thus dwelt at the clause of the Con upon length stitution borrow investing Congress the credit of the United States, on because it is un der that that the notes of the United States were it is issued, enhanced value supposed notes, to such as the gives means quality validity borrowing, constitutionality are founded. It is provision annexing quality that, true and in counselj the several arguments opinions different to which our courts, State attention has called, been v. Hepburn Griswold, dissenting opinion refer ence also made to other powers possessed by Congress, towar, declare suppress raise particularly insurrection, armies, and to provide aud maintain support a navy; were called into exercise all of which taxed at severely time Tender Act was ''But it is passed. evi no dent that notes have relation to these-powers, other furnish a powers Congress, except con venient means for for their execution. raising money The existence of the war increased the urgency gov ernment for funds. It did add to its to raise powers funds, or such the nature any of change, respect, those or the transactions which authorized. If the powers Dec. Field, of

Dissenting opinions. —Opinion J. the notes of tender engraft quality extent, occasion, all with existed at Congress, of exercise were mere matters of its legislative purpose when a he exerted discretion; and the equally power may of loan is to meet ordinary expenses government made raise needed to sums are as when vast time of peace; wants of war. The in time of navies armies provide measure of its can never be the powers. the government the means by Constitution has The specifically designated for the uses of can be raised government, which funds are taxation, These borrowing, either in war or peace. is sale of its public property. and the coining, duties, taxes, and collect imposts, to levy empowered necessities may .extent which public and excises to any It unlimited. can to borrow equally Its require. dis- coin, and it can into convert bullion may possess any and other United lands property of the public pose The such designation or any part property. States on subject exhausts the means powers these the means The designation nega- money. raising would be unnecessary for the others', designation tion of all means were if the use of permissible and absurd any a resort to forced loans, means exclude These without it. with the interference property and to compulsory any one taxation in forms except by regular third persons, mentioned. inis, “to coin money” is not all.

But with and exist- inconsistent repugnant my judgment, to make coin tender. anything ence of power metallic substances in- is mould having coin money To trinsic, convenient for commerce, certain forms into value in- them with the stamp and to impress of definite metal, value. Coins pieces their dicating thus national value, Such stamped by authority. weight the terms “to coin aud import is the natural money” doubt that this is mean- if there their coin;” it would be removed the lan- Constitution, ing follows the of the “power which immediately grant guage Legal 650 Tender -Cases. Field,

Dissenting 6f opinions. Opinion J. — coin,” of value regulate authorizing Congress thus and also and coin,” money coined, by foreign distinction coin and obli- other clauses between made of the General and of the several States. gations government The conferred is deter- power regulation mine the struck, the several coins and weight, purity their relation to the consequent unit which monetary might of the established.by authority government powbr —a which can be exercised reference to the metallic coins but. countries, which of execution foreign is-incapable with reference to their or securities. obligations

Then, in clause the Constitution fol- immediately “to for the provide lowing, authorizing Congress punish- ment of and current of the coin securities counterfeiting States,” a distinction between the United obligations coins of General made. And in clearly government tenth forbids section, which the States to “coin money, emit bills and make credit, but and silver anything gold coin a tender a like debts,” distinction is payment made between coin of the several States. obligations terms and silver as coin The exclude the- gold applied conclusion. any other possibility

Now, true of the sense term is not money a it is medium of a standard of value which exchange, are all other values measured. Blackstone says, Story is a repeats his universal medium or "language, “Money standard, common a with which comparison the value of ascertained, all merchandise or it is a sign rep resents the values of respective commodities.”* Money such coins or standard, its are a being pieces necessarily legal te'nder to amount of their values for all con respective tracts or without judgments payable money, any legisla ' tive enactment make them so. The provisions different acts that the coins to be struck shall be coinage are tender, such of their effect merely legal declaratory when offered not essential payment, them that give character. Commentaries, 1 276; Story Constitution, Blaekstone’s on the $

Dec. Dield, Dissenting J. opinions. Opinion to fabri- therefore, is, to coin make them cate thus coins out metal money, their values for their declared indicated lan- If this be true stamp. import meaning make the how can used, it is difficult to see guage tender. When Consti- paper me- make tution shall have the says it shall tender, tallic coins a it declares legal effect.that make else such tender. The affirmative grant nothing all the here a of other over subject. negative standards there cannot well be two different this, Besides of tender for value, and two kinds the of consequently of from the same transactions. discharge arising obligations actual would in standard or tender of the lower value The and other, such case exclude supersede inevitably or tender of value no one would use standard higher well his could bo accomplished when by purpose equally illustration of the truth of the other. A use of practical all we have seen the effect coin of the act upon principle converted into that capable being medium without loss. It must also be able not only pass and re payments individuals of the same ceipts among society nation, do adjust the balance discharge be exchanges tween different nations. It must be which has a something value abroad well as at home, which as well as foreign domestic debts can be satisfied. The metals alone precious answer these alone, purposes. They therefore, are money, and whatever else is to perform the functions of money must be their representative capable turned being into them at will. So as bank long retains paper this quality it is a substitute for Divested money. of this can nothing it that give character.Ӡ

The statesmen who framed the Constitution understood as well as principle understood in our day. They had seen experience Revolutionary period the cruel demoralizing tendency, and the injustice, intoler- * Genesis 23:16. Webster’s Works, 3, vol. page † Dec. 1870.] Field,

Dissenting —Opinion J. opinions de not convertible of a on able paper currency oppression into circulation into and forced mand money, When there enactments. they tender provisions penal a which were a for country, fore constructing government a em to be could not fail to see was destined mighty they nations, relations with all and have commercial gov pire, for was to endure they ernment which believed ages, they fundamental law as the determined in the to recognize and always that which ever has been .value, standard of standard, world as the true must recognized facilitate establish thus commerce, justice, iudustry, protect of the evils which a recurrence prevent possibility had and the injustice experienced perpetration they Web know,” had Mr. says witnessed. We they sound uniform cur “that the establishment of a ster, was one the adop ends contemplated greatest rency If we could now fully tion Constitution. present framed and who all the motives who those of those explore we should find Constitution, supported perhaps hardly a more one than this.”* powerful

And how the framers of the Constitution endeavored establish have this “sound and uniform we currency” seen in the clauses which already adopted providing Their determina- and silver coins. currency gold is further evident tion sanction metallic currency debates Convention proposition upon authorize on the credit of United emit bills under- States. bills of as the terms then By credit, stood,.were circulate meant intended to issues, paper through community purposes money, bearing ordinary their face the promise pay sums draft tliereon at a future specified day. original “to contained a borrow giving clause States,” emit credit United bills on the and when the clause Mr. Morris consideration, came up “ on the credit moved out words and emit bills strike 3, Works, p. Webster’s vol. [Sup,

Dissenting opinions. Opinion Field, J. “ of the United States,” that if the United States observing had credit, such bills would be' if unnecessary; had they not, and useless.” unjust Mr. Madison whether it inquired “ would not be sufficient to them a prohibit making “ “ tender,” This will he remove,” said, temptation emit them with views, and notes in unjust that promissory in some shape best.” Mr. re- emergencies Morris plied out the words would still striking leave room for “ “ Dee. 1870.] Legal Tender Field,

Dissenting opinions. Opinion J. — those in the Mr. debates, one, Of who only participated an favorable Mercer, opinion paper expressed money, if none that were allowed to issue suggested that bills their should be is, acceptance compulsory—that But were should be made tender. the words they of nine two. voted stricken out a vote States to Virginia for Madison has note to Mr. motion, appended her vote was his that occasioned debates, acqui stating that he became satisfied that out escence, and striking not disable the from the use words would as far as could safe and notes, proper; public currency cut off the a paper par would pretext the bills a tender either for public ticularly making debts.”* private from these debates it that is manifest

If anything Convention intended to withhold Con- members as bills to circulate is, issue the power gress —that inor, words, other receivable compulsory payment, to be tender —and that the quality express having denied, was the bills under an to issue apprehension it would if under pretext give granted Congress, effect, their to annex the idea of to them that declaring and the of that instrument. All this is adoption rejection in the but it does not for on true, case, very apply present under consideration there was now subject everywhere, conventions and in the in the several discussions be- State an entire of fore so far as we uniformity opinion, people, and that have record of concurred with expression, any as disclosed Convention, of the its debates, the intention by withheld from Constitution that-the Congress as bills to circulate bills made money, by issue meaning or, in other words, hav- compulsory payment, receivable tender. of one have Every appears quality legal ing of that the issues a understood power making paper legal the States, tender, absolutely prohibited. forever a member of

Mr. Luther Martin, Convention, his before the in his Maryland reported speech legislature, states the de- letter to body, arguments against urged to emit bills of credit, priving.Congress of wise Convention, then “majority says being event and risk being willing any political beyond every admit the idea of a emission in rather-than paper evil any to trust this refused to a case, authority government possible were the most unlimited of which they lavishing powers of which and to the were mercy they taxation willing blindly of the citizens of State property trust liberty every erased that clause Union, system was this construction to the Constitution given Not and the their at its framers discussions people them, before but until it was of pending time passage of of a cen- 1862, 'act of period nearly three-quarters of this construction was never called in soundness tury, of or the opinion by any legislation question tribunal. Numerous acts, stated, judicial already Dec.

Dissenting opinions. Opinion Field, J. this passed during period, authorizing issue notes for the funds or purpose raising supplies, obtaining but in none of them was the notes made acceptance , one have I been able compulsory. Only to find instance history where it was even congressional proceedings that it suggested was within the competency Congress annex to the to consider all the

agreed bu,t resolutions the one containing the refused to consider provision. That.it by n a-vote of than more two to one.*

As until the act of there nowas 1862. legislation making of notes issued on the credit of the United acceptance States the construction of the clause of the Con- compulsory, stitution never containing grant coinage power came before this court for and the at- directly consideration, of the court was tention drawn to it. But only incidentally whenever the court on the even spoke subject, incidentally, was in entire its voice with that of the Convention. harmony Thus, Breedlove,† Gwin v. where a marshal of Missis to collect a certain commanded amount of dollars sippi, on received execution, the amount in notes, bank it was held “ that he was liable to the and silver. plaintiff gold By “ the Constitution of the United said States,” court, gold or silver coin made current law can be tendered in by of debts.” payment 5, Howard, Abridge p. Benton’s vol. 361. 2 †

YOL, XIX. Field,

Dissenting opinions. Opinion of J. where case v. And in the of United States Marigold,* enact whether had to arose power question for the of law persons certain punishment provisions intent with counterfeit coin into the United States bringing “ to said: These court it, provisions appertain to pass the Consti trust invested an the execution of important that'trust on tution, part and to the obligation fulfil of creat trust and the namely, duty government, standard a uniform and metallic pure maintaining ing n The Union. coining of value throughout its value was and of delegated regulating for the very purpose, assigued the Constitution that, instrument, creating preserving framers of and on value, of such standard and purity uniformity otherwise which was foreseen of of the impossibility account in confusion necessarily the inequalities preventing vieujs different com which in to different policy, cident to bear on would be subject. munities brought founded thus coin money bding given Congress, with it the correlative it must carry on necessity, public of that the creature and power.” object protecting here des- difficult to how the trust duty It is pereejve and metal- a uniform of creating maintaining ignated, Union,” value lic standard of discharged, throughout char- standard of lower value when fluctuating another law, necessarily operates acter is authorized by circulation. the first from drive I have mentioned to all the

In addition opinion weight of the Con- same from the purport, adoption we have, tes- the united 1862, the act stitution up passage statesmen and country. of the leading jurists timony who, men all the' that period, participated -Of during can not one nation, distinction in the councils of any in asserted different who ever any Congress named mentioned. As the Chief have observed what I than n Justice, other who on disagreed points widely statesmen on this. .agreed

* Howard, Dee.

Dissenting opinions. Opinion Field, J. Mr. Webster, who has been always regarded by a-large of his as one of the most-en- portion ablest" and countrymen Constitution, did not seem lightened expounders think there was on he be- doubt the subject, any although to the class advocated exercise longed who largest, Prom his entrance .General first powers by government. 1812, into he consideration to the life, public gave great- an and in elaborate subject speech currency, Senate, he said in-a 1886, : large Currency, perhaps bills, and silver sense, includes not and bank just only gold bills of but also. It include all that exchange adjusts settles balances in the of trade exchanges operations business; but if we understand by currency the'legal and that which constitutes lawful tender country, and is the measure of debts, statute then undoubt- value, n is included but and silver. ’Most edly nothing gold unques- tender, there is no there can be no tionably legal in this under the this country, authority govern-- but other, ment or silver —either the gold coinage own at coins, our rates prints foreign regulated by This is constitutional Congress. principle perfectly plain, The States and of very importance. highest expressly, but and silver anything a ten- making gold prohibited of debts, and, no such der payment although express pro- applied hibition has Congress, yet, no to it in this to coin respect power .granted money, the value coins, it has no foreign clearly to.regulate else, for coin as substitute paper, tender in anything of debts and of contracts. discharge payment in both its has exercised fully It branches. has it; and still coins it has coined money, regulated value' and still their coins, value. The foreign regulates tender, therefore, the constitutional standard of value, cannot be overthrown. established To overthrow would shake whole system.” we consider the now,

If, history times when the adopted; Constitution intentions of the framers of instrument, as shown their debates; the contempora- Legal Tender Cases. field, of

Dissenting J. opinions. Opinion — in the conven- the State neous of exposition coinage power Constitution, and tions assembled to consider the the natural before the discussions meaning people; public Constitution itself as us.ed; the the nature the terms the of enumerated powers; legisla- government creating of a tive century; exposition nearly three-quarters recorded utterances tribunals, and the of judicial opinions commentators, it would seem im- statesmen, jurists, value authorized that the standard of to doubt possible metallic coins struck consist of was to Constitution by and that the the direction Congress, by regulated was denied that instru- other standard by to establish any ment. those I have besides stated, are other considerations

There which are equally convincing against constitutionality of the act of 25th, February of the provision debts and debts far as it 1862, private so applies That contracted pro- previous passage. con- such obligation vision directly impair operates in the case of v. Hepburn In opinion, tracts. dissenting to be its and the this is admitted operation, Griswold, position forbids the that, while Constitution States to is taken forbid this, it does not laws, such do pass a uniform establish system bankruptcy, is mentioned in conferred, of the which is support expressly courts, In some State opinions position. is directed, it denied that the attention has been which our. question impairs obligation previous provision is asserted that a contract to contracts, pay money being to its of that satisfied, according payment meaning, if when the is mad,e, payment money satisfaction, with this mode of it does not interfere law does This contract. obligation position impair term the same true so represents thing long money or their actual it is not true cases equivalents, both is a term has different when the Money meanings. generic are not made without a and contracts term, speci- of the coins or denominations of fication money, Dec.

Dissenting opinions. Opinion Field, J. intended, of them cents; number eagles, dollars, it will not be contract for a pretended specified number of can be satisfied of an eagles delivery equal number of both dollars, and dollars are although eagles nor would thus be it the contended, at time money; though the contract matured the call had determined to legislature dollars Contracts* are made for not names eagles. %things, and sounds, or the of a contract arises its . from obligation and the terms means the law affords which for its enforce- ment. which

A law the terms of contract, the changes either , time or -mode of or performance, new condi- imposes tions, or with those dispenses its expressed, or-authorizes for different that is a something satisfaction law provided, which impairs such a obligation, law relieves from the moral of parties duty performing original contract, of the and stipulations it their en- prevents forcement.

The notion that contracts for the of stand payment money different upoii any con footing from other respect to have had its tracts appears certain old origin English cases, that of de particularly mixed which were money,* the force of the cided upon with prerogative king and have no coin, respect weight .applied powers under oúr by The lan possessed Constitution. of Mr. Chief Justice Marshall Faw v. Marsteller,† guage is cited in which of this notion, be made support can concurrence with it when detached from its express context and read from the facts separated it which reference was used.

It. is obvious that the act of 1862 terms of changes contracts for the made to its payment money previous every All such contracts passage, in. particular. essential had reference to metallic struck coins, by Con- regulated and gress, composed principally silver, and which gold constituted the of legal money several country. Cranch, Darvie's Reports, 48. † Field,

Dissenting J. opinions. Opinion had forms, acts fixed purity, impressions, coinage weight, of. these coins, had denominations provided yalue should. certified their be form and impress at the mint. they received the dollar as the unit, . had . .established They silver should and the contain, prescribed grains which, the different should compose grains of-gold gold dollar was therefore or silver coins. .Every, piece gold of a its form specified weight purity, by certified A contract to number of dol- pay impress. specified 'deliver lars was a contract to number then designated character; or silver of this laws pieces gold States the of such several delivery holder. dollars'could be enforced The,act this; it declares that of. 1862 changes gold need not-be delivered to creditor dollars .silver according contract; need not stipulations all; at delivered United States, promises which the creditor has had no relations,-to these pay dollars, some shall be at future received in uncertain day, discharge ,of the contracts-r-in that the words, other holder of such shall, take in for them .substitution different con- contracts with, less valuable and surren- him, another party, tracts der the Original. therefore, for it, the law granted

Taking im- plainly of such I contracts, proceed pairs obligation inquire is for that reason whether subject it constitutional any In Hepburn v. objection. dissenting opinion Griswold, .said, as mentioned, it Constitution does already not forbid legislation impairing contracts. obligation js. It, is no In true provision there Constitution forbid- in. terms such it And is also ding express legislation.' true that,,there.;are powers express delegated'to Congress, which necessarily operates execution.of obli- impair It the- of-the framers- object contracts. of that gation of instrument, to create a National government competent its- relations with represent- country .entire foreign accomplish nations legislation measures and.to Dec. Tender,

. Dissenting Field, opinions. Opinion of J. common interest to all the which the several States people, in their independent capacities incapable effecting, or if the execution capable, of wdñch .would be attended great therefore, embarrassment. difficulty They, clothed all the essential to the Congress with suc- powers cessful of these accomplishment ends, and with- carefully held the other grant Some of the powers. powers from their granted, interfere in nature, their execution very with contracts of Thus war intercourse parties. suspends and commerce between citizens or subjects belligerent nations; it renders its continuance the during performance of contracts incidental made, unlawful. These previously war in the consequences were-contemplated grant So commerce power. imposition regulation of duties so affect the of articles prices imported of; manufactured as to alter value essentially previous contracts them; but this incidental respecting consequence' was seen in of the over commerce grant duties. There cah valid .be no to laws objection passed execution of like these express powers consequences follow other- their execution. But incidentally wise such when follow consequences.do incidentally, enacted.- directly only express authority affecting legislation of contracts is found in the to establish obligation uniform’ the direct object system bankruptcy, release, tois insolvent debtors from their contracts surrender their From in the property. grant express Constitution I draw a different conclusion from that very v. Hepburn Griswold, drawn in the opinion dissenting court delivered. just opinion majority there is no To mind it is a my argument general strong interfere with that a contracts, special power Congress essential to authorize uniform was regarded sys- grant tem If such existed dele- general, -power bankruptcy. n case an express bankrupts, gation power As observed if this very justly unnecessary. by-counsel, could taken in case be power without sovereign any express Tenser Field, Dissenting J. opinions. Opinion in connection with it could be taken bankruptcies, grant, in some as a respects which regulation might regarded traders. made the interest of commerce over the of contracts a limited subject The power grant Constitution, the framers of the did necessarily implies should exercise unlimited not intend that Congress power, The limitation restricted. is less designated power over the This subject. measure of power congressional the instrument as one nature of of enume- from the follows rated powers. is not doctrine that where forbid- power

The expressly would exercised, whole it character change den bemay TAs read the of the of our writings great government. decisions of this court, true doc- commentators and' the if a reverse, that is not in the exact terms trine power not and is the exercise of proper necessary granted, it does not thus exist. a power granted, some undefined possesses The position which it deem do as a may expedient, anything , from the of the general purposes resulting govern- advanced opinion ment, majority, settle under of course consideration with- question would it end for would difficulty, out controversy changing enumerated-, from one of to one powers our government ofwill in the unrestrained Congress. resting of the United States,” “The Mr. says Chief court in Marshall, Martin v. Hunter’s speaking Justice which are “can claim no powers Lessee granted Constitution, and powers must actually granted as are given given expressly by necessary be such impli it is true, This follow from the implication, cation.” as well as one several express powers alone, grant in all must, cases, be implied subsidiary expressed. powers the execution language the writ of habeas de respecting corpus, Constitution shall not when unless, that it in cases suspended claring * Wheaton, Legal Dec. Tender Cases.

Dissenting Field, opinions. Opinion of J. — invasion, it, is rebellion may public safety require such exists cited as writ suspend showing Constitution; and the of the somewhere adoption is mentioned evidence amendments that important'powers who Constitu were understood by people adopted which not it, enumerated, tion to have been created enume not included those incidentally are. rated. of the

The answer found in the nature to this position Constitution, as one as stated Mr. powers, granted Chief Justice Marshall. The inhibition the exercise- upon does that, a not warrant specified power implication inhibition, but for such have exer- been power might In the cised. Convention framed the a Constitution a committee to a bill of proposition appoint prepare rights understood, was and it has been rejected, unanimously always that its was such a bill would rejection ground various contain not exceptions on powers granted, this a account would afford more very pretext asseí-ting than was In the discussions before the granted.* people, when of the Constitution was no ob- adoption pending, was effect than this of a jection absence urged greater one bill of numbers right8,,and Federalist, Hamilton combat Mr. endeavored to After objection. several reasons such a bill not he why stating necessary, “I further and affirm that bills of said: go rights, sense and to the extent are contended for, are not unnecessary proposed Constitution, would even- would contaiu various They exceptions dangerous. not on account would afford powers granted, very to claim more than colorable pretext granted. For shall not be declare that done which is, there why things no ' for instance, do? should it be said power‘to that the Why, shall not be restrained -when no press liberty which restrictions I ? will given imposed Convention, 869; Story on Constitution, 1861, Journal 1862, note. Field, J.

Dissenting opinions. Opinion would confer that such a regulating contend provision men dis that it would furnish to but it is evident power, power. pretence claiming posed usurp plausible that the reason, Con a semblance of with They might urge, of with the absurdity pro stitution not to be ought charged was not which' of an given, the abuse authority viding against of the the liberty and that the restraining provision against that a prescribe clear afforded a implication right press be vested intended to- it was proper regulations concerning- serve as a This specimen the government. National to the doc which would given (cid:127)of the numerous handles of an the inju trine of constructive indulgence powers by of dicious zeal for bills right.”* to the were States presented

When the .amendments that the stating were preceded by preamble adoption at time of had, the a number States conventions' of desire “in order Constitution, the expressed their adopting that further abuse of or powers, misconception to prevent be added.” should clauses and restrictive declaratory have made could will one Now, any pretend or of an establishment prohibiting religion, a law respecting the of or freedom thereof, speech, exercise abridging free to assemble gov- petition of the people right had not a redress of prohibitions grievances, ernment em- been of such exercise any legislative an amendment ? bodied of been that had bill did Hamilton rights

How say truly a handle to have would Constitution, given inserted an this We have day constructive of powers. doctrine claim of very in the opinion majority illustration it is the he which apprehended, of constructive power when court, believe, in I instance, history first has such constructivé by Congress the possession asserted. been

. contracts by legislation interference The the Constitution adoption States several previous Federalist, No. 84. Begad Dee. Field, J.

Dissenting opinions. Opinion (cid:127) Not only,” oppression injustice. was great cause and declared to be-a was-paper-money-issued Story,* says debts, laws of another character, payment under the of tender laws, known appraise well appellation laws, laws, laws, ment instalment suspension- enacted, time to time all credit prostrated private laws the some of these morals. By due.payment private debts in violation of was were, of debts suspended; the-very authorized to be instalments contract, terms-of paid by - sort, worthless, however at different periods; property be tendered debtor either personal, might by-the real his and-the creditor debts-, to take compelled payment wThichhe seize on debtor, execu might property an to its known tion, at appraisement wholly disproportionate Such others of a like válue. oppressions grievances results of were the nature ordinary legislation during War and the intermediate down to the Revolutionary period the the formation of Constitution. entailed most They evils -on the and introduced a of country system enormous fraud, aud which chicanery, profligacy, destroyed private and all confidence industry enterprise.” of evils To the. recurrence of'this character not prevent was the clause inserted in the Constitution only prohibiting bills of the States credit and issuing, making anything silver a but tender in of also debts, but gold payment more law the prohibition, from general any impair passing the of contracts.- restore confi “To obligation public ing dence Chief Justice “it Marshall,† completely,” says the use-of- means necessary only prohibit particular effected, be but the use which of prohibit might by any which the same mischief means be produced. might to have intended- to establish a appears Convention great contracts, should be inviolable.” principle, clear evidence, one would It would require very suppose, that with from what to induce a belief the evils resulting lax Marshall terms-the system/,of legislation-following 8, Constitution, on sec. 1371. Commentaries Wheaton, Sturgis Crowninshield, † Tender Cases.

Dissenting opinions. Opinion Field, of J. Revolution, on their deeply the framers impressed minds, of the Constitution to vest in the new government intended created them this dangerous despotic power, should remain'with the unwilling States, and thus widen the of its possible sphere exercise.

When the of possession this has power been asserted argument until now it has never been (for asserted decision of this it has been in cases where court), supposed benefit resulted from the public or where the in- legislation, terference of the contract was obligation very slight. clear Whenever a case injustice, absence of such is supposed stated, exercise of public good, is not denounced existence No one, denied. indeed, found bold if. contend that A. has a contract one hundred enough or land, one hundred acres fruit, one hun- pounds can cloth, dred a law yards him pass compelling one-half of satisfaction of the accept con- quantity Rut has the tract. same to establish a standard measures as it has establish a of-weights value, and from time can, .standard of to time, alter such It can declare that standard. the acre shall consist of eighty rods instead of one hundred square sixty, pound instead of and the sixteen, ounces foot six inches eight twelve, and if it could instead of compel acceptance acres, after pounds, earn&number suchaltera- yards, ' then actual quantitystipulated, instead tion, accept- one-half could quantity originally ance designated without the form of alter- required directly going through man No could standard. just imposed upon by ing sense, in a double where the same names words use of to denote different the same of quantities thing, were aрplied of the would his committed such condemnation wrong nor because was made to conceal withheld, attempt be case of words. it by jugglery of to interfere with contracts for the

The power is not or differ of money greater any particular payment contracts for lands or respect from its power ent Dec. Field,

Dissenting opinions. Opinion J. case is not fulfilled more in The contract one goods. any of a than the other by delivery thing action it is called because by stipulated, by legislative in contracts are to construed in both same name. Words be in the sense in wThioh were understood cases par by at the of-the ties time contract. of the

Let us for a moment see where the doctrine has the undoubted asserted will lead. right struck as it chooses to the coins such denominations give them. It can declare and to by. authority, change what is the a dollar, or, dime shall hereafter be called hereafter shall declare that the dollar same thing, which now compose of silver composed grains a contract dime. But would pretend anybody satisfied could be as at by dollars, present, composed issue? of the new of dollars an number delivery equal to that extent. who would never met one have go I too unjust has been flagrantly answer always would-be paper Yet acceptance be tolerated. enforcing called, can be so if the dollars, promises paper promises a de- dollars, silver equally enforcing gold place contract, from the terms injustice parture at the the actual value entirely upon measure depending case. reverse the in the market. Now time promises that hereafter should declare eagle Suppose Congress com- should be called a or that the dollar dollar, should be would as the any- asof many gold eagle, grains posed com- dollars, contend that contract for a moment body com- be satisfied dollars should silver, now posed on this am that no I confident judge sitting ? gold posed in Christendom could and, that no indeed, bench, judge decree- sanction monstrous would wrong who found his in such contract could satisfy debtor that the ing ated. times the value ten originally case paying stif mind which is every implanted natural sense right JThe can- Yet there such injustice. revolt from supreme would creditors. law for another debtors and law for not he one one time be by congressional contract can at changed If the 670 Legal Cases.

Dissenting opinions! Opinion Field, J-. — for the benefit of the debtor it at legislation another ' n time be benefit the creditor. changed For acts of such as those mentioned injustice flagrant' there is no even authority legislative body, though not restrained by any express, constitutional-prohibition. For there and mo unchangeable right principles without would men rality, society impossible, other, would be but wild so there beasts each preying upon are fundamental of eternal the ex justice, principles istence which all constitutional founded, government and without which would be an intolerable acts, Chase, There are Mr. Justice tyranny. says hateful v. which the Federal and Bull,* Calder State legislatures cannot without their do, these exceeding authority. Among citizen he mentions a law'which for an punishes innocent action; a law that or the lawful destroys impairs private citizens; contracts of a law that makes a man a in his judge cause; and own a law that takes the from A. and property toit B. “It is all reason and gives against says right,” learned “for a justice, intrust a people legislature such and therefore it cannot be powers; presumed they nature, have done it. The genius, of our spirit amount State prohibition such acts of governments of law and legislation, general principles reason forbid them. legislature may enjoin; permit, forbid, declare new they may crimes, and punish; establish for all its citizens in rules of conduct future cases; they may command what what is right prohibit but they, wrong, cannot innocence into or innocence as change guilt, punish of an violate antecedent crime, lawful rights private contract, or the To private maintain right property. that our Fedei’al or State possess such’ legislatures powers, had not if been restx’ained, would, in expressly my be a political inadmissible opinion, heresy, in our altogether free republican governments.” Saunders,†

In v. Mr. Justice Ogden Thompson; refenúng Constitution provisions States forbidding * Dallas, Wheaton, 3 388. † Dec. Tender’

Dissenting Field, opinions. Opinion J. bill of ex attainder, pass'any post law, impair- .law facto contracts, Neither ing obligation says': provision can considered new strictly introducing any principle, for into greater security safety incorporate this charter admitted all to be the first provisions among No State court would, I principles government. presume, sanction and enforce an ex law if no post such prohibi- facto was tion contained in the States; Constitution of the United neither would so, vested retrospective laws, taking away be enforced. Such laws are to those fun- rights, repugnant damental of laws is principles upon just every system is an founded. ,It and sanc- elementary principle, adopted tioned the courts of in this and in Great justice, country Britain, whenever such laws have come under considera- tion, and laws are within this yet retrospective clearly pro- hibition.” * In Wilkeson Mr. v. Leland Justice whilst comment Story, of the of Rhode Island under ing legislature the charter of Charles The II, said: fundamental maxims of a free seem to. that the require rights per sonal should be held sacred. liberty private property At least no court of this would be war justice country ranted that violate and assuming disregard them, a to the so common repugnant principles lurked under civil justice liberty, any general grant to be authority, implied legislative ought any gen the will of the eral The expressions people. people ought' to be with so vital not to their presumed part rights without and direct ex security very well-being strong an intention.” of such pressions cited from the views to these

Similar opinions Chase, are found Marshall, scattered Thompson, Story, through who have us on preceded judges opinions their collective force remark bench. As of Mr. against in the case of Evans v. is with Eaton,† Justice Washington, made at nisiprius That was answer to out significance. Court, Peters, 1 Circuit Peters’s 323. † Dissenting Field, opinions. Opinion of .1.

a motion for a in an nonsuit action for an brought infringe- had, ment of The State patent right. Pennsylvania March, which was to the 1787, of the previous adoption to the the exclusive Constitution, plaintiff given right make, use, and his invention In vend for fourteen years. 1808, the United States issued to him a January, patent invention for fourteen from that It was date. years contended, the nonsuit, that after the expiration State, to his granted by plaintiff’s privilege right became invested in invention State, an people contract and, implied therefore, government, could with the Constitution consistently grant exclusive invention. plaintiff.an right neither the court replied which the. mo- premises upon founded, nor the ; tion could conclusion, be admitted it was not true that the anof exclusive grant privilege to an invention for a limited time implied binding irrevocable contract the with that at the people expiration of the limited the invention should become period their and that even if the there property; true, premises was which Constitution forbade nothiug to Congress the pass'laws violating contracts. obligation The motion did not merit as any consideration, the Fed- eral court had no to power nonsuit the will grant against in case. plaintiff under these any expression circumstances of reason the court any would not why grant motion, the it if the was aside the possessed power, case, not, is therefore, entitled whatever as au- any weight It was as thority. true, however, observed the by court, that no such contract with the was public, statéd, implied, and inasmuch was authorized expressly by to secure for a limited Constitution time to inventors the exclusive to their had discoveries, in right power way impair contract, of such a if obligation had existed. And this that Mr. Justice perhaps, Washing- ton meant. It is his in evident from language Ogdenv. that he Saunders, existence repudiated any general or vested power Congress destroy impair private rights. Dee. 1870.] Field,

Dissenting opinions. —Opinion J. I said What have heretofore of Con- power respecting to make the notes of United States a tender gress legal contracted to the act 1862, payment previous debts interfere had reference .with has to debts contracts, ' and contracts between citizens. But the same which power is asserted over these with also reference matters asserted debts and must previous by owing government, to contracts between the and the equally apply (cid:127) citizen. The act of declares notes issued shall be a md tender of all piiblie private, legal payment debts^ interest duties on the exception on.imports If are a for .antecedent debt. tender public they pri- legal debts, vate for' debts also a tender such owing legal the United cases States, That by mentioned. except was made a mere any exception matter legislative discretion. contracts for'the Express payment gold have silver been maintained court, specifically enforced on the that, construction of proper ground 1862, act of acts, with other in- connection tended to these contracts from except operation But the covers all cases provision. if.it exist-at all. The to make the notes of the United States and silver equivalent in- gold necessarily cludes to cancel with them contracts specific as well contracts Before the gold as-money generally. pas- of the act of there 1862, was-no sage legal money except consisted of coins, metallic struck or regulated Dollars then authority meant, as Congress. already certain said, certified silver, to be of a pieces gold pre- scribed their form and weight received purity impress at the mint. The in of dollars, designation con- previous (cid:127) tracts, meant or silver dollar’s as as if gold those plainly metals were named. specifically then,

It follows, from the doctrine logically, advanced the the of court majority of over Congress the tender, of subject that borrow Congress may gold coin of the upon faith to pledge public at the repay gold of its maturity in direct obligations, yet, of its. disregard VOL. XII.

Dissenting Field, opinions. Opinion J. faith, in violation of the lender to open may compel pledge, in take, of the its own stipulated, place gold promises; that character of this would he in violation legislation in the but its Constitution, letter and harmony spirit. is, at the time, present seeking, the of several world, markets of loan hundred millions'of dollars in securities the gold upon containing promises United States to repay interest, money, principal in this court, tribunal of yet highest gold'; country, its solemn this day declares, decision, that should such is loan it obtained, entirely competent Congress in not in notes of off, States United gold, pay at time themselves, such and in such manner as payable determine, itself and that sanction- Congress legislation of faith such breach would not be ing gross repugnant law of the land. fundamental What is this but declaring repudiation by govern- ment of the United States its'solcmn would obligations ? Whenever the be constitutional fulfilment obliga- in is refused, tion manner stipulated and the acceptance different from that is something stipulated enforced the will of a breach creditor, of faith is com- against mitted; and to the extent of difference of value between and the which the creditor stipulated thing thing com- receive, there of the repudiation pelled original obliga- tion. I am to admit that the not willing Constitution, the boast and our would country, sanction glory permit such in form, or any Repudiation any legislation. would and for

extent, dishonor, the commission of this in crime no can ever warrant, my be found public judgment, in instrument. stress has

Some been placed argument support over asserted subject the fact can coins regulate alloy under its and has .issued exercised authoi’ity, without question, some in- respect, by diminishing the actual stances, or silver quantity gold they contain. assumed, it is can thus put coins (Congress, issued Legal Dec. 675 Tender Cases. Field, Dissenting opinions. Opinion J. — than their value; other intrinsic therefore,'it Con- argued, a declaration, its value to the notes of gress may, by give the United as issued to be used other than States, money, that which they actually possess.

The and the inference are both assumption erroneous, thus force, advanced without argument only and.is of the weakness of the which has to rest significant position its on an assumed support authority to debase the coin of the country. can alter valué of the coins

Undoubtedly Congress issued its by authority by increasing diminishing, time to time,'the contain, alter, at just alloy they, its pleasure, denominations of several coins issued, ' -but there It its cannot make these altered power stops. coins the coins their condition; previous equivalent ‘ if and, the new coins should retain same names as the would be current at their original* †'.they true value. declaration that should have other Any value would fact, and monstrous inoperative Con disregard by of its constitutional coin duty. gress money, declared is a court,* trust already devolved by great with it the upon Congress, carrying duty creating a uniform standard of value maintaining 'throughout "Union, and it be a would manifest abuse'of this trust give coins issued other than their authority any real value. when debasing coins, once By standard is is meant fixed, coins, to the their form and giving im a certificate of their a relation to press, that standard having different from that which, truth, in other they possess; words, a false coins certificate of their giving value. have often Arbitrary profligate resorted governments this miserable scheme of which Mill robbery, designates† aas shallow artifice, least impudent covert of all modes of which consists knavery, calling shilling that a debt of one hundred pound, be cancelled pounds may oue hundred payment shillings.” Marigold, Howard, United States v. 567. 2, Mill’s Economy, p. Political vol. † '

(cid:127) Field,' J. Dissenting opinions. Opinion ever been at- debasement has no such this country In none will ever be tolerated. confident and I feel tempted, different coins of in the The in quantity alloy changes idea o.f de time, time to not with has from any been-made for the of them, purpose preserving proper basing The first and silver. relative value between coinage gold the coins should that consist 1792, in act, provided passed and half-cents coins of-cents and silver, copper of gold, —the of and the other coins of consisting gold copper, consisting of and silver the relative value silver—and that gold an is, ounce of one, fifteen to be as gold1 should in of fifteen as the value ounces taken equal should be silver. to the increased time, production owing

In progress the mines of Mexico and from South silver, particularly value was Silver this relative declined America, changed. until it bore the relation of value-to one to gold relative in to fifteen. The was of one result that the instead sixteen as soon as coined, worth intrinsi up was being bought gold value of silver, times yet sixteen passing by cally value, times such was sent fifteen out at law only The to be recoined. attention of was- country in the relative value of the two metals change called coin. led, This disappearance consequent gold and the the rate of coin an act adjusting true 1884,* gold in coin. silver relation in California, sorné after- discovery gold years of that metal, production

wards, great again changed the relative value direction of the two. another metals. declined, or in other silver words, was at a premium, Gold before was coin 1834 so now silver up, gold bought and-a of small was coin for up, scarcity coin bought change felt community. Congress was again interfered, the amount of silver in reduced coins representing coins, a dollar, but even then these fractional parts tender for sums five being restricted exceeding * 4 Large, Stat. at Dec. J.

Dissenting opinions. Opinion Field. issue thé small silver coins previous dollars, although Silver be a amount. pieces continued to been au- of three cents had previously of the denomination for sums of made tender 1851, but were thorized only coins their These cents and uuder. did. express thirty and in 1853 and their issue was soon stopped, actual value, standard of coins of other increased to their value' a dollar. fractional parts has of this been fully satisfactorily

The whole subject learned able and argument very explained the maintenance'of contended original who counsel He showed court v. Hepburn this' Griswold. decision of moved, in all its has been the debates an anxious'desire under the actions coinage power, relative the two metals, true precious ascertain the value.of it; in accordance with and that in'no and to fix the coinage intrinsic value been deviation from case has permitted any a and even that in for fractional of dollar, coins parts except of so1 character to them has prevent been only slight the into actual bullion, from converted depreciation being their made convenience. up by portability-and being of the action statement follows, It Congress times the certain coins, at in different alloy altering metal with ah stamp assumption arbitrary rest it does solid value and not upon currency, any give and that the built thereon with foundation, argument goes it ground, thus far tender

I have spoken provision legal reference to its to debts application contracted particular It to its remains to a few words previous passage. say as .to when validity applied its transactions. subsequent

So far as contracts are made in notes subsequent payable States, of the there can of course United be no objection their enforcement of an specific by compelling delivery notes, of the amount equal -by judgment damages for their value as estimated in or silver dollars, nor gold would there be to such enforcement if the any objection tender had never From existed. provision use general Field, .

Dissenting opinions. Opinion J. States, issued the the money by paper Speaking —and true of issued same is money by equally papеr language v. States —Chief Justicé Marshall says, United Craig a medium has Missouri:* “Such been liable State always Its value is to considerable fluctuation. continually chang sndden, and these often in- great expose ing; changes, Peters, 4 432. Dec. Field,

Dissenting opinions. Opinion J. ruinous immense are the sources of specu div-idualsto loss, man. mail and all between confidence lations, destroy which, a roots, this mischief mischief To cut up by affected States, and which felt deeply United through in their all, declared interest and prosperity people credit.” that no State should emit bills of Constitution v. Saund after .in. Mr. Justice Washington, referring, Ogden no ers,* to of the Constitution provision declaring shall make State coin emit bills of credit, anything money, debts, silver coiu a tender in says: payment gold “These associated prohibitions, granted powers thereof, value ‘to and to coin regulate -of members coin,’ most constitute foreign obviously the same same family, being upon subject governed the same This was to fixed provide by policy. policy States, standard of uniform value United by throughout other the citi which the commercialand between .dealings thereof, or between them and as the zens well foreigners, transactions of the should be government, moneyed regu well be lated. For it vest asked, might why value establish a uniform standard of if out, means, 'means use the same the-States pointed might standard, and thus defeat and conse uniformity standard itself? And establish standard quently why at for the various contracts into, those be entered if contracts- .afterwards might might vyhich is standard, different discharged under the of State tender laws? It authority money, obvious, therefore, that these the tenth .prohibitions and are essential section entirely homogeneous, of value in the forma of a uniform standard establishment ' . contracts.” tion and discharge of. out, that this cannot be carried and this It is policy plain metallic standard of uniform value fixed and throughout so maintained, United other standard States long has which of itself no intrinsic and is for- value adopted, ever uncertain. fluctuating

[*] Wheaton, [Sap. .Field, of J. Dissenting opinions. Opinion I am unfold, endeavored For the reasons which I have of dissent from majority compelled judgment which measure, I court. know that validity midst of"a I have called in passed question, even the bravest hearts sometimes when rebellion, giga'ntic and that the patriotic doubted the of the Republic, safety the conviction that it men who it did so under adopted to obtain funds of the would increase ability I thus cause. Were and advance Natioual supplies, of those character to be appreciation by my governed of the Consti- men, instead requirements my views views assent to the tution, I should majority readily officer, But, bound the court. sitting judicial with, law enacted the greater every by Congress compare unable to reconcile law enacted by people, being with that in fundamental I cannot law, the measure question it as unconsti- hesitate to pronounce being, my judgment, and void. tutional which the discussions have attended this subject

In at times there has been what seemed to me to intimation, that to the measure in a covert opposition of a was the favor- expression spirit altogether question, interest of which that measure Was cause, able All such intimations I with all the I repel adopted. energy do not one in I yield can any express.' honoring the noble men who were in the patriotic reverencing nation the terrible with the during councils struggle them To belong rebellion. greatest glories saved the and that of Union, our having history,—that these a race. For results will be emancipated having as the honored so long English remembered lauguage admit men. But I do not or read among is spoken have measure of every they may a blind approval evidence down rebellion esseutial to put thought which I cau only loyalty country; of loyalty laws to the Constitution and consists obedience admit obedience that affec- it. It made pursuance shown to a can be reverence superior having tion Dec. Chappell. Bronson’s Executor v. case.

General statement of the our Master when he command. So right thought great said to his command- me, If love disciples: keep my ye ments.” Chappell.

Bronson’s v. Executor one, objection, proceed without do acts which Where suffers another to conduct, ground authority him, or, by adopts his sanc- done, bound, though previous tions aiich no acts aftor are he will exist, had authority though requisite power been respects a given depend- case way. applied the most This doctrine formal ing special on facts. for the District of Wis- from the Circuit Court Appeal ' consin. as executor of lands owner Bronson, York, of New being a and J. sold to E. Wisconsin, Chappell, residing tract one-. near State, in that the sale Galena, being negotiated by A of the Bostwick, place. W. of the last-named portion C. and as it became was secured by purchase-money mortgage; ¿s- Bostwick, under the it was due paid by Chappells him- had who advertised Bostwick, them that sumption by as the or fourteen a term of twelve years agent self during of Bronson constituted Bronson, agent the duly failed; and appropriated it.. Bostwick having receive a bill now filed use, against Bronson to his own to foreclose mortgage.' the-court below Chappells Bostwick; and the -the set defendants up payments The The a agency. was thus pure question involved question Bronson between relied upon correspondence defendants itself, on as sufficient Bostwick, particularly, dated 9th former, February, the latter letter from two letters These to it of the 15th. 1860, reply others, character general quoted in different stated parts facts leading case, and Bronson the bill, dismissed court below opinion. took appeal. notes payment United States.” found, 1867, for the June, $7368, The jury plaintiff, 532, 845, Large, For the form of the notes 12 Stat. at 709. mentioned Wallace, text, j Bank v. Supervisors (7 26) see for the exact lan Hepburn acts, Oregon see v. County (Ib. Lane v. Gris guage 74), 605. (8 Id.), wold Dec. in error in Knox v. Lee. Argument plaintiff here, first, the case complaining, the defendant brought second, his above-quoted plea, .the overruling led the he had jury alleged sentence charge; increase the damages. improperly trial, so far as the when, record had been a There previous of the sort showed, instruction complaine'd without any found a- verdict for jury damages, increasing than that an $7376, amount slightly greater given by verdict. second Jr., error: Paschall, <Sr. plaintiff Messrs. The overruled. Confederate plea gov wrongly de It is now to ernment was say easy facto. but those who were within that it was not a government, was a know that of fact it its action point the scope It declared war; had courts. It fearful long reality. its confiscations A title under must therefore it. waged

Notes

notes the. promissory Congress make tender in Hart debts, payment private —Thomas Benton. ' will The-court see thus that while indeed re- did duce the"standard and value so of gold coinage, $100 of the new coins were in intrinsic value gold hardly equal of the former $94 coinage, yet gold fact did absolutely contracts impair nothing obligationof destroy thecreditor. from the .For, rights beginning, had debtor either of the right pay coinage these, value, At first metals. precious equal in either ar> was indifferent. payment Gradually gold course, or the silver me then, of predated depreciated, debtor, silver; 1834, had that, he so option,paid the debtor who owed and had then $1000, gold $940 coin, could his silver coinage, exchange gold $1000 with these his debt of discharge $1000. Therefore, did the value of the reduce although Congress after no 1834, 1834, could more gold coinage debtor, his less intrinsic value than he pay $1000 Years, Thirty 1 Benton’s p. 1834, Debates, 21, 4650, Congressional June pp. 4652-3. †

notes be made a treasury should tender for antecedent debts. Is it appropriate plainly adapted to borrow commerce, money, to ráise and regulate sup- armies, to port provide maintain a in- navy, suppress invasions, surrections or or even repel of these powers For it united? is true that had occasion to exer- cise at one these the time every powers when these notes were issued.

notes nor was these there, than after more they.received, pay were, even reck issued, such depreciation property, have such value, would made payments at specie oned have been suspended disastrous. payments Specie generally and 1861, banks and 1857, treasury 1837, ruin. Irredeemable cir without paper producing any great after and 1861, culated banks in suspension 1857 Indeed, as before. the crisis .as well was before suspen not. afterwards. banks, sion of the bills the old Confederation nor those issued Neither dissenting Griswold, Wallace, 632, v. opinion Hepburn See Dec. Cases?

notes a dis- count; rent, and tender of notes of the 'stopped bank distress for and pay- satisfied ment in them executions the bills of the Bank of (]ike Kentucky, Kentucky, Peters, 315). v. Bank of But this law Briscoe continued in “ effect’, 1814, was, in March, stay-law,” force till as the notes of to the bank at no time made a tender so as discharge debts or to release securities. constitutionality. argument against the Mr. Potter’s of the’ the exercise delegated .or proper necessary and plainly to be has been asserted appropriate powers, than that this in no other exercise, way to their adapted effect of was made stronger. measure creditor take the is to this property provision ..of which these notes extent to the debtor transfer To below their nominal value. be depreciated ,may such appropriate powers one of wrong delegated all, one. For To as much as to adapted?” plainly relation whatever has no clearly insurrections; navies; to maintain suppress armies and raise it is unless tho relation which results borrow money;

notes legislation, it had no indicated'that even has debase materially with false republic, or'stamp the coin and arbitrary- values. court has years spoken Duringthese thelegal and has pronounced pernicious, money power a trust standard; to maintain a pure metallic delegated 435, 492; 485; Elliott, 5 Id. 3 486; Id. 4 184, 1 Id. Id. 185, 436; 2 Id. Minute, 291, 478; 290, 471, Yates’s 39-40. Howard, Peters, 4 567. 434. 9 12 Wheaton, ‡ § 288. † ** Howard, Peters, 11 5 433. || ¶ See infra. vol. xii.

notes at which could be rate treasury procured operated on the creditors’ was the but not indirectly, directly rights; a license let men in short measures. to pay sale has told that the when are We prose to man’s bum man’s a wmr seize any property, any cuting it has house. so when man’s And these 'barns, raze any in the course of the necessarily exercised operations- an war. But officer on carrying actual prosecution therefore, to raze a lias, no' house Carolina authority war in Illinois; l'aze still less to every throughout house . His authority destroy property is-limited country. to be necessary prosecution immediately destroyed and for the so taken war; property destroyed, gov has Government indeed ernment- liable.† .becomes citizens on war, take the but it is a property carry Wallace, Harmony, Howard, 134. Mitchell † *8 v. Ct, against'the constitutionality. argument Mr. Potter’s exercised constitutional by power, by government, taxation, Constitution; or other method prescribed by to let one man licenses another. not wrong by sale.of a the less a because enacted as Nor is a wrong part wrong instead of Is measure, of a act. public by private my great taken, less taken less any property unjustly taken in without because law law, process by general stead one? of the act by special Surely injustice number of on the affected does it. depend persons by declare it did- not should not be The Constitution lawful to use, nor take for public property deprive persons private without compensation, except property generally, acts. On the declares it shall not contrary, great public at nor to all, be done any person. who court Those concurred judges opinion this eases, have analogous presented,* discharge claim a court, creditors’ the value bankrupt depreciating war, a declaration of his vessels the worth reducing or of mills of his furnaces his in the tariff'; and by change that these have declared would be subject, equally measures provision, objection they arc unconstitutional, private without com taking property iudced And would be unconstitutional as pensation. fo,r within this the vital distinc coming very provision,

notes tender in treasury legal pre- discharge I debts, that the then, between existing grant analogy cases and the case of tender would have suggested legal n been and I should then no here con- more competent, .be that this tending prohibition against private taking am issue of such notes than I con- property prevented that it a declaration of the establish- war, tending prevents ment aof or tbe tariff. system bankruptcy, change it is But because exactly every express given instance, one of these instances is in this- wanting and because it is the settled rule that soughtto implied, to be as an implied auxiliary delegated a. must be not that I assert prohibited,” implica- against prohibition tion of the provision Constitution imposes. VII. This law impairs contracts. obligationof court, on the late question Hep argument Griswold', burn v. were all tender pro agreed vision did the' contracts. impair obligation pre-existing But a of the court declared not for this was portion iii bidden to some it was that; cases, Congress, expressly authorized.- I am that has not unmindful of impression I prevailed tbe in this profession respect; beg among out tbe has existed as point I-think this.* misapprehension * It has been impair obligation contracts, said that this law does not because, dollars, agreements to pay mere the creditor the risk of takes

notes these or, coined, distinguishes gen- they So, too, dollars. when the courts come erally styled, specie to allow recoveries contracts calling treasury-note can dollars, for their give this, judgment payment, whether be or au- debts payment the}’ the Constitution, thorized as the court can enter a just

notes treasury how debts. But discharge pre-existing can the court thus settle the Should question? affirm you the former it; would indeed decision, settle yon but should overrule that decision without you change opinions of the justices who have heretofore passed upon ques- tion,, how then will have you settled it? What can then result leave this future, for the and de- question open and influence stroy of-the court? consistency It is the function of peculiar this tri- high supreme . bunal that it has not to determine merely questions right between but even private parties, pronounce upon of the laws validity themselves. And Wasthis momen- why tous and delicate committed this duty court great but for the people belief its wise and independent those toas judgments, disputes powers government, which, under a limited based government, written must compact, arise,-would be unavoidably to be likely most wisely Now, settled? whatever certainly importance there inbe the doctrine of stare decisisin the determina- tion of questions of it is to a private tribunal rights, charged with the determination limits of the govern- ment that certainty essential. consistency absolutely For more than tribunal, seventy years supreme

if notes would time, incomplete treasury n between are for most notes, then, These purposes, money, however, citizen. It and the argued, government citizen for citizen and between money such; that made them has for purposes now before the Mr. Davis might (a party court) though a debt to the allowed by Congress discharge cannot be allowed notes, with he contracted in 1857 treasury date to Mr. a debt of the same discharge owes that a debt which he Parker the-same-currency; sacred than a debt American less to the collective people from the follows, owes to one of them. Hence, which he can be made that what' counsel, reasoning opposing for some word, constitutional sense money, made other The cannot be purposes. purposes, be a that there must the conclusion suggests singularity logic. fallacy are called on tender provision súpporters To this it in the Constitution. authority to show

notes them by making tender. a. question view, So their constitutionality, is to be Benno, Wallace, Bank v. Veazie Dec. argument Tho Attorney-General’s support constitutionality. determined tbe of the court agreement disagreement tbe on opinioh upon finance, subject legislature which meu differ much- as on view This has theology. been pressed to which we have thorough argument listened, with an earnestness that doubt that it- perrnits.no is seriously taken. But unless the court is that the..means prepared say cannot, in faith, be to have good supposed by Congress adaptation end, cannot proposed them pronounce unconstitutional. Tbe individual re- judgment judges to their should not expediency gard substituted for that This court cannot Congress. the means now in say without tbe field of question examination when tbe in- lay to the desired end were to be This strumentalities chosen. admitted, the of selection is with Within privilege Congress. court, that field This supreme. consider the

notes legal lent, and assumed sold, borrowed Men have bought that payment obligations contemplating every variety tender treas Indeed, such notes. made with be might If the universal measure of values. become notes have ury these it be established that debts decision, our now, by coin; if, con only by can discharged gold obligations contracts, of all these the expectation parties tó trai’y rendered notes are unavailable, instrument of the an injustice; has become grossest it was never contem an are loaded with obligation debtors assume; a added should percentage large plated the demand must become and such debt, gold every distress, ruinous sacrifices, contracts, general satisfy These too consequences expected. bankruptcy

notes tender of an act declaring treasury legal Congress after of debts contracted its.passage payment a tender act them for-the making legal discharge an. as debts, as well those incurred before those made There be difference in the effects enactment. its after in the of their acts, hardship by operation, produced the fundamental that which tests cases question, in both is, can constitution validity legislation, Congress character notes the to treasury qualities ally give circu such notes be constituted a Can ? legitimate can, defined value? medium, they having legal lating .If must be to fulfil all contracts available such notes then (not reference' to solvable without money, expressly excepted) contracts it is not were made. Hence when time n strange acts hold the unconstitu that those who made contracts before when February, applied tional also' to that the acts themselves hold find 1.862, compelled n ate created after that and to hold time, as to invalid debts debts alike can be classes of both .discharged only by silver coin. gold which we have serious spoken, consequences n Dec. Opinion of the court. must be if there are, is a clear they accepted, incompati between the Constitution and the tender acts. bility we Eut them thm unwilling precipitate upon country unless an such A decent incompatibility plainly appears. for co-ordinate branch of the respect demands should until the judiciary is presume, coutrary that there shown, has been no clearly of power transgression members of which act'Under the obli —all of an oath gation the Constitution. Such has fidelity In been the rule. always v. lan Commonwealth Smith* the of the court was, It guage must remembered that, it has been assumed weighty reasons, as a in con principle, constitutions, struing Court of Supreme United States, court, other court of by every reputation that an States, United act of legislature is be declared void unless violation Constitution so manifest to leave no room for doubt;” reasonable and, in Fletcher v. Peck,† Chief Marshall said, Justice “It irot on slight implication that the conjecture vague legisla ture is to be to have transcended pronounced powers its acts to be considered void. The between the opposition Constitution and law should be such that the feels judge a clear and conviction their strong incompatibility therefore, each other.” It is incumbent, those who affirm anof act of uncoustitutionality show that it is in clearly violation of the provisions the Con It is not sufficient for them that stitution.. succeed a doubt. raising

out of notes competition court, this There, issued by government. speaking Justice, avowed that it is constitu Chief through tional for the whole right provide currency be done United States coin, country; might * Wallace,

notes tender for the all debts other than payment those not an was means expressly excepted, inappropriate into execution the carrying of the powers, legitimate we whether it government, proceed inquire forbidden the letter or by spirit Constitution. It is not claimed that any -express prohibition but it is exists, insisted that the spirit Constitution was- violated the enactment. Here who assert those of the acts unconstitutionality rest their mainly claim that the clause argument. They conferred upon to coin Congress power money, regulate value thereof, and of coin-,” contains an foreign implication but that which is nothing subject coinage, nothing but the metals precious can ever be declared law to be toor have money, the uses of this is meant mouey. .If that because certain over the powers are currency expressly given other Congress, to the same powers sub- relating ject forbidden, impliedly we need remark that such is not the manner which the Constitution- has been always construed.. On the it has been contrary ruled over particular subject exercised to an auxiliary express there is power, another though re'lat- express power Dec. Opinion the court. same less subject, comprehensive.* There an ing a certain class of crimes express power punish (the only direct reference to criminal contained in the legislation Con an was not stitution), objection regarded deducing crimes other from another authority punish substantive and defined There are other power. decisions grant assert, same effect. To then, that the clause enabling to coin its value im regulate tacitly a denial of all other over the plies currency nation, is an to introduce a new rule attempt of construction the solemn decisions of court. So far from against have containing lurking prohibition, it was many thought

notes tender, declaration claring treasury legal into execution the ad- and-adapted, .appropriate, carrying mitted powers government? however., rest our assertion of the not, We do to enact laws tender We upon grant. that the can, sense, assert no only just grant regarded au their enact- implied as.containing prohibition against if it that, raises are of ment, any' they implications, over rather than complete currency, restraining. next to the We come used, much and, indeed, argument of those who assert the main reliance the unconstitutionality acts. It is that are prohibited the Constitution spirit because.they indirectly impair contracts. re- course, obligation argument, to those contracts which were made before Feb- lates when the 1862, first act was and it has no ruary, passed, whether the acts are valid when question bearing

notes one the forms themselves, borrowing to money, nevertheless resorted except occasions, such as-war or extraordinary pressing other public exigencies importance; great gravity and should be no exerted than circumstances' longer of the case demand. I do not that it is a that it is war or say power, be called war; into exercise in- exi time other’public arise in make of a nation which gencies may history it occa expedient to exercise it. But of imperative sions shall exercised when, the times how it long, and. it is force, for the gov department legislative ernment and1 sensibly judge. Feeling judgments wishes of the it cannot people, long.(if department misun within it ever proper suppose can) sphere derstand the com business interests list j rights munity. deem criticism of I to enter into a minute unnecessary time, all the from time have, foolish, .wise sayings, been on statesmen, this subject philosophers, uttered

notes loans receivable for all to the United States and. dues duties on In except his imports. report “ of December, 1862, he said that United States notes re ceivable for bonds a secure interest next bearing specie best to coin,” notes convertible into and after stating financial measures which his wore advisable, judgment he added : The recommends, therefore, no mere Secretary on scheme, but paper series meas contrary ures a safe return to silver looking gradual gold and as the standard, basis, and measure of permanent value At the Constitution.” session of recognized before this made, was the bill report containing tender clause had become law7. He was extremely averse to clause, solicitous avowedly very

notes States then 'it He pending. thought indispensably that the necessary to issue these authority notes, should be The of the bill was granted by passage Congress. delayed, if not which jeoparded, by opinion prevailed the.difference on the them a tender. It was question under making legal these circumstances he that the when expressed opinion, called the Committee of upou Meaus, that it by Ways * was and he was not to find it necessary; sustained sorry courts, the decisions not respected unanimous indeed, nor without decisions of State courts re contrary equally Examination and reflection spectable. under more propi tious circumstances have him satisfied that this was opinion erroneous, and he does not hesitate to declare it. lie w7ould do so, if his favor the just unhesitatingly, tender legal clause had at been time and his decided, opinion the of the measure clear. constitutionality Secretary Treasury Letters the of the to the of Ways Committee Means, 1862; January 29, 22 and Spaulding’s History, 27,46, Financial pp. Dee. Dissenting opinions. Opinion of the Chief Justice. of the notes a Was making necessary legal In words, the war? other was it on carrying necessary execution of the borrow It is to the ? not whether the issue of notes was nor question necessary, the 'financial measures whether of the any government The were of the circulation necessary. issuing commonly known as and was greenbacks necessary, constitutional.. to the of the necessary They payment- army to all for purposes uses navy government The banks had money. suspended and the specie payment, was reduced to the alternative of their using its own. paper issuing it is a common error, Now it was our judgment of the error Griswold, v. opinion Hepburn minority read, and is the error just considerations opinion the issue of United States notes have been pertinent urged them a tender. real justification making is, was them a tender a question making necessary execution means to borrow If money? notes would circulate as well as with without this quality idle to it is of such But circu- urge plea necessity. of the notes was lation provided them amply by making for all receivable national taxes, dues government, all loans. This was the relied provision when the bill was first purpose secretаry prepared, his reflections since 'have convinced him it was suf- a tax, ficient. could debt, or Nobody boiid pay buy without -these notes. As the im- using notes, being would redeemable, mediately than undoubtedly cheaper coin, would be debtors and preferred by purchasers. would thus, the universal law of trade, They into pass

notes the national banking any pro- reduction for circulation of vision corresponding notes; and still further the.laws authoriz- United States made a securities, the issue of interest-bearing ing interest. amount, for their excluding for note circulation is The best not. support limitatiph, for loans coin interest. but receivability, especially bearing until the fall of when a loan 1864, 'This support given in three interest, increased currency payable years bearing into a loan less coiir interest, was convertible bearing, .and cent, cent, six and five for the loans per per substituted which the notes had interest,, been specie pre- bearing received. viously so that a cannot It is currency supported plain depreciate loans; in other.words, below the than more general It rise will or fall with it. At the (cid:127)credit country. notes were if the received five moment, cent. per ¡present

tion notes tender, was making means necessary proper on war carrying or to the exercise of any express power government. absence of But not our necessity our is. only, to this objection tender clause. weightiest We stilL think, adduced notwithstanding to the con- argument that it violate an does trary, express of the Con- provision and the if stitution, not the letter, of the in- spirit, whole strument. It cannot maintained that legislation justly Cfc. Dissenting opinions. Opinion of the Chief Justice. can be maintained as the exer- to such'objections obnoxious There can be no implication cise of an implied power. to be warranted as the Constitution. Legislation against

notes government, contract, and tender without deemable, against whom arc tendered? In consid- will of person they n we assume as a fundamental proposition this question ering of establish stand- it is the duty every government of such a standard is indeed value. The ard of necessity Without it the transactions of universally acknowledged. whether measures, would become impossible. All society or have certain extent, value, must proportions weight, are intended measure. that which The they unit must have certain unit of extent defiuite length, weight and the unit of value certain definite definite certain gravity, subdivided, These units, value. multiplied supply all which measures are made. The standards by properly the common consent all selection, nations, therefore, by and silver as the standard of value natural, or, of gold whatever For defini- more inevitable. correctly speaking, have of value tions- political given, they economists silver have value more gold proportion agree'that size, less to loss wear of and are abra- subject weight than other subdivision sion material any capable easy value that their less and slower impression, changes of time, considerable than that periods through degrees, substance could used for the other same pur- any And these are to the conve- qualities indispensable pose. In the nient use construction required. standard the constitutional to establish a power standard grant of. every is, value Which presumption therefore, would agaiust other materials authorize than adoption those consent. (cid:127)sanctioned universal But the terms of the in the Constitu- only express grant tion of establish such a standard leave little room conferred is the presumptions. to coin- and these words must be understood as money,

notes standard of value make such by designed It seems to us new. wholly of the Constitution framers have it could been Its asser entertained. impossible framers of our funda us to ascribe seems to folly tion the most and to contradict facts conspicuous mental law, our public history. awas to determine the to coin money The power of the metallic denominations pieces fineness, weight, measured; and we do were to be values per- by can be extended without doing how meaning ceive of the Constitution words by imposing very violence never intended to This a sense bear. on them sub- contemporaneous by construction supported all the recorded utter- action of legislature; sequent aiid the unbroken tenor of statesmen jurists, ances recent when the until excite- very period, opinion judicial war led to civil adoption, ment many, views. different Wallace, Supervisors, Bank v. Dec. Dissenting opinions. Opinion of the Justice. Chief The sense of the- Convention which framed the Constitu account tion is from the Mr. Madison of clear, given

to notes power absolutely legal cluded from the.Constitution.† circulated favor The of the Federalist, widely papers Constitution, of ratification of the discuss briefly the. fabricate metallic coin as a to power money, power money, to fabricate of hint that money any (cid:127)without any power views and the other Congress;‡ description given as the views which it fairly regarded promulgated who voted for of those adoption. measures took views, the same Acting upon Congress of a mint, the establishment exercising thereby same and to exercise the power, coin has continued money, established the It same until the in the way, present day. and as the determined unit, quantity quality dollar money and consist, each coin should and silver of which of gold all coins to bo forms of and the denominations prescribed ever no one suggested Until recently issued.§ else a make anything possessed power body value. of standard on other points who have widely Statesmen disagreed constitutional only have opinion agreed struck coins, regulated are metallic value measures of Mr. Webster expressed the authority Congress. settled conviction and universal but the his opiuion Rep. 653, 656. — infra, pp. See Papers, 3 Madison's 1346. † Federalist, 294. Dawson’s ‡ Stat, acts. 225, subsequent Large, at § Oases.. opinions Dissenting —Opinion the Chief Justice. “* when he said Most there is : unquestionably country no and there be no tender in this can tender under the or country, authority other, silver, either the of our mints- but gold, coinage ' coin at rates This is a foreign regulated by Congress. constitutional principle perfectly plain very highest States frorii importance. prohibited any making and silver a tender in gold thing payment debts, such no express prohibition although applied Congress, no has yet to it in this but to granted respect coin the value regulate coin,it has foreign clearly no substitute' else coin as paper anything ' debts payment contracts.” discharge court, And-this v. Gwin said: Breedlove;† “By the Con the UnitedStates stitution silver coin gold made current

notes by making tender, is conferred the Constitution. upon Congress by * 4 271, Works, Webster’s 2 Howard, 38. 9 Id. 567. † ‡ Dec. 1870.] Clifford, Dissenting opinions. Opinion J. and FIELD concur these CLIFFORD brothers My but in consideration of views, prin- importance will deliver their involved separate opinions. My ciples also dissents. brother NELSON CLIFFORD, Mr. Justice dissenting: sense, in the constitutional coins of means gold Money, silver, as a of law fabricated stamped authority by value, vested pursuant power Congress measure the Constitution.* n fractional also be minted for small Coins of copper may law and circulation, as authorized gov usage discuss but it is not ernment years, necessary eighty in this at investigation.† topic large upon Even authority subject general extend to coin beyond power does money, regulate and of thereof value foreign coin.‡ also conferred to fix the Express course that stand- measures, standard weights transactions, future varied or to- ard, applied interest, but the public promote grant changed to the standard of value is respect expressed and the is much more re- more language, grant guarded stricted. fix the standard of is evi- measures Power weights discretion, wide but the comparatively power, dently the value of the authorized regulate to be coined is definite and precise Constitution grant little discretion in its exercise, and very admitting power,

case referred notes that the act-of to, Congress making “lawful and a money question payment of debts” could not vindicated as necessary proper means into effect vested in carrying thereof, coin other value regulate vested under the Constitution. express power in-Congress Unless that it is clear case, overruled, therefore, my the court are controlled that both the cases before judgmeut, that decision. Controversies determined -by Supreme decisions are settled, Court and conclusively finally reverse their are the court cannot review and numerous that own judgments.* different, said the it is court, But where the parties a former case, decision, in a overrule subsequent in a technical it must be admitted proposition, are to be found examples is correct. Such view, point but are not nu- court, decisions of the the reported the number never to and it clear that merous, seems ought in matter of so much increased, importance, especially convictions clearest the error unless plain of judicial duty. on in that case was rendered fоr plaintiff Judgment in the court of the 17th September, highest 1864^ 23d of June State, year and on the succeeding writ and removed cause error, sued out a defendants Under call court for regular re-examination.† into first at the December the case was docket argued at of the Attorn 1867, ey-Grenei'al Term, suggestion case was it be and the re-argued, was passed an order Able counsel ap for that continued purpose. accordingly term, elaborately next argued again at peared were also on the other cases Four or five sides. on both the same cousti at that to involve time calendar, supposed Stewart, How States, Peters, 492; 3 Bridge 12 Co. v. Sibbald v. United Wallace, Sanderson, ; Bradley, 12 v. 424; 18 Id. Noonan ard, Peck v. Duvall, 20. v. Hepburn, Griswold †

notes silver,.but he gold expressed himself as utterly emissions opposed paper United them as States, so liable to abuse even characterizing so abused that the certain of never being government ought “with the use so trust itself an seducing dangerous as he was to Opposed emissions paper element.”t States, circumstances, under United belief past ever- have could concurred in the he proposition make 44; federalist, No. Ibid. 42. No. Hist, States, of the Bank of the 21, 24, United †

notes other the use of or any emissions- treasury paper basis. of various kinds without were- specie Expedients occurred, it never either to the executive or- suggested, could be found remedy treas making authorized, then and the tender, notes, result ury second Bank of the United States (cid:127)was that the was incorpor it said, currency, authorized Paper ated.‡ true; true act, also undoubtedly the bills or notes of the bank made receivable in all if States, United same were at the time- payments 766; 3 Large, 3 Id 100. Id. Stat at Ib. 266. † ‡ VOL. XII.

notes not even treasury make suggested, member the President Congress.‡ either by are included in this if review, even Seventy years .computation back carried act passage mint, and it is clear that there is no establishing trace executive or within that act, legislative, period, of any new constitutional support theory affords slightest can law constitute emissions tender paper that Congress Even the father of debts. our Washington, in payment of debts, refused to accept paper money payment country, the War and the before Independence, proof contracted York, Dyck, v. 27 New 42. Bank Van Metropolitan Works, Mason, 271; States, Thorndike v. 2 United 4 Webster’s † 469; 118; 201; 9 11 Large, Ib. Id. Id. 257. at Stat. ‡ Dec. Dissenting opinions. Opinion Clifford, J. as well Hamilton, full to as Jefferson and point emissions Madison, national opposed paper author! ty.* Sufficient also is recorded in the of the decisions reports of this court show that court,'from organization when the judicial system day judgments cases before . the court were held announced,† opinions such a construction of the utterly opposed Constitution authorize would to make paper promises tender as between debtor and creditor. Throughout the doctrine of the court has been, and still period is, unless

notes and often is, a means to may execute requisite granted power, attainment being fairly applicable end, notes, means, may employed, are not restrictions or and are precluded any exceptions, other contained in the express repugnant any grant .Constitution. beacons Light-houses, buoys, may erected under the Con power commerce, regulate an cannot authorize officer to take gress government for such a without private property purpose just compensa as the exercise such a tion, would be power repugnant the fifth amendment. Power to and collect taxes is lay conferred but the cannot tax the Congress Congress, salaries of the State as the exercise such judges, with the admitted incompatible States to create courts, tor their appoint compens judges, provide ation.* also Congress duties, and excises impose imposts, the debts and for the pay common defence provide welfare, but the canuot general tax or Congress lay any duty on articles exported State, nor can any give of commerce or revenue any preference by any regulation of one State over those of ports another, as the exer- cise such the Constitution. prohibited by Exclusive vested in to declare power.is war, to raise armies, to and maintain support provide navy, and to make rules for the regulation land and naval forces. those Appropriations execute powers be made m'ay but no by Congress, appropriations to that use can be made for a term than two longer as an years, .for a term is appropriation longer expressly

notes never question, they may Griswold, Wallace, Hepburn v. Clifford, Dissenting opinions —Opinion J. even for a and it added performed office, day, that neither enactments nor decisions legislative judicial can the commercial emissions world to compel accept paper kind as the standard of value which all other values to be measured.* will Nothing office, fact it is clear perform that neither legisla tive enactments nor com decisions can judicial perform mercial Commodities impossibilities. undoubtedly may as matter of barter, or the seller exchanged may accept instead of but it is nevertheless paper promises true, money,

notes with the terms of the contra it. Established comports founded often usage practice government, has these now be repeated, rules, sanctioned until may said that are not but the open question controversy, in the cases court before the is whether the declare such notes be lawful make them a money, tender, and such a impart currency quality being ofvalué, a standard creditors to compel accept pay their ment-of debts iu such as the currency equivalent established the Constitution money recognized.and as the standard of value which the value of other commodities is to be measured. Financial measures, various kinds, the wants of borrowing to'supply from taxation and the treasury, beyond receipts sales lands, have been public adopted by

notes ken be constituted shall usage, treasury debts, nor made standard value payment taken in entitled to when connection great weight, from derived evidence, the persuasive convincing that the fram Convention, published proceedings such never of the Constitution intended ers grant men recorded sentiments great power, favor of the draft whose procured arguments reported view is ratification, supported repeated infallible rule of court, decisions of this interpre shall of one- not be tation express language

notes these proper -provisions. to borrow which is cise of the power money, granted limitation. The extent to which without ’ eases, be exercised in all depends, may the necessities of that body judgment govern- to borrow includes'the to give ment. The power evidences indebtedness and repayment. obligations * 12 Large, Stat. at , Field, Dissenting opinions. Opinion J. arc the securities Instruments of this character among These States mentioned Constitution. United in- securities are in the form of certificates sometimes form, issued other debtedness, but may as will fit them such form and in such amounts gen- made that end circulation, payable eral and to notes, form .and bearer transferable delivery.

where notes in all acts visions found except take authorized loans. up previous simply or services The issue of notes for supplies purchased rendered at the United States request only giving ; and the an thus incurred their indebtedness obligations of notes for same which authorizes the issue money is received as issue for whatever must also authorize their States The result to the United an money. equivalent for the if received the same as actually for the or services. notes and out then paid supplies the act of The notes issued under February

notes thus by making greatly ceivable for the dues. The to the act does objection public features; in these it lies in the which de- not lie provision tender in clares that the notes shall be payment “a-legal far as that debts, so provision public private,” applies and debts debts, private United States. owing by In of this validity considering constitutionality I shall in the first confine provision, place myself pro- vision in its debts. shall Afterwards I application private have of the in its something say provision application debts owing government. In the discussions tender the upon subject of the measure do as to advocates agree power referred; the Constitution to which it shall be some placing on some upon borrow'money, coining and some on what is termed a from power, resulting power and these discus- purposes government; general sions have been statements as to the effect accompanied by measure, which must have fol- consequences had it been lowed and which will rejected, now occur if its sustained, bo not which rest no solid founda- validity and are not calculated tion, to aid the judgment coming ato conclusion. just In what I have to I shall endeavor to avoid such say statements, loose and shall direct to an general myself into the nature of these to which the inquiry powers measure referred, and the relation of the measure to them. can, Now if its declaration, make legislative the notes of the United States a tender in payment is, debts—that can make them receivable private against will of the creditor satisfaction of debts due to him by third parties is not derived respect —its to borrow under which money, the notes issued. That is not different in its po\ver nature or essential

notes pretence would to their acceptance lead ready produce desired loan. effect of the actual quality inducing receive them limited to the parties necessarily amount debtors, who did not by existing required scruple dis-

notes in their had dence which receiving parties value was deter- ultimate Their exchangeable payment. them confidence, mined this every person by dealing his advanced his money charges accordingly. regulated this of mere to control universal inability legislation illustrated law of by history currency strikingly credit issued Continental our during bills of by Congress June, 1775, March, War. From 1780, Revolutionary over amounted to $300,000,000. these bills Depreciation in 1777, as a natural followed consequence, commencing Previous to this $14,000,000. when issues equalled only when the issues were 1776, $5,000,000, time, January, only declared if had, resolution, any person “so lost all virtue to his should be country” regard refuse to-receive bills he should, as to on payment, conviction thereof committee of or county, city, district, in case of from their decision, or, appeal council, or convention, committee of assembly, safety resided, where be deemed, he colony treated published, an his from trade country, precluded or enemy with the inhabitants” colonies.* intercourse when 1777, And issues yet in January, remarkable resolution: $14,060,000, passed of credit emitted That all bills “Resolved, by authority in all trade, payments, pass current Congress ought States, and deemed in value in these equal dealings dollars, milled and that sums same nominal Spanish ask, receive more the said offer, or bills shall whosoever bullion, or other coins, or silver species any any gold the nominal sum or whatsoever, than amount thereof more in the said -for dollars, milled or bills in Spanish any commodities whatsoever than' or lands, houses, goods, at of same could be person persons same purchased other silver, species money whatsoever, in gold, Congress, Journals of

[*]

notes United States a of the of Congress making circulation, tender. It drove coin from made general of and barter bullion, like the su sale market. it, bject coin the States to The inhibition money yet silver coin a tender make but payment anything gold connection with the of be read in debts, of must grant two taken to- provisions power Congress. coinage that the coins which the indicate questiou beyond gether and the fabricate, coins, was to foreign National government were to of which it was consist valuation regulate, of and silver. if not entirely, gold principally, were the sub- The framers Constitution considering the entire when to be used Union throughout ject money it is inserted, and in- these plain they provisions coins fabricated the Na- metallic by them that tended by from abroad its authority, adopted by tional government, should be the metals, everywhere precious composed of value standard standard and exchanges made. could be payments regulated Field, Dissenting J. opinions. Opinion— conveni- forms silver moulded into that time At gold with value authority, their use, stamped public entfor for small constituted, the exception copper pieces with Indeed civilized world. entire values, money thus divided have con- these metals up stamped always all civilization, stituted money people having of the world down earliest periods-in history time. It was with “four hundred shekels of silver, present merchant,” current that Abraham money bought with.the the field four thousand Máchpelah, nearly years ago.* This metals as the of coin- precious adoption subject material of all age, peoples ages —the world, been the result of any vagaries fancy, —has to the fact attributable of all metals alone pos- sess' the which are essential to me- properties a circulating dium uniform value. “The medium of a commercial circulating community,’' Webster, Mr. “must'be that which is the circulat says also medium of other commercial communities, or ing .must

notes minister,” which responsible would do all the without the mischief.” good Mr. Gorham -wasfor striking out the words without If the inserting prohibition. stood, words he said, and lead might “suggest measure,” and that the so far as it power, was necessary “was safe, involved in that of Mr. Mason said borrowing.” “ he was to tie the hands of unwilling Congress,” thought “would not have the unless it were ex- “ Mr. Ellsworth pressed.” it favorable moment thought to shut and bar the door “The mis- money.” against paper “ he chiefs,” said, the various had been experiments made were now fresh in the mind and had excited the public of America. withhold- disgust respectable part By from the new more friends in- ing government, fluence would be to it than almost gained else. anything can in no case be Paper money Give the necessary. govern- ment and other credit, resources will offer. The power may “ do harm, never Mr. Wilson good.” would thought have a most influence on the salutary credit of United “ States remove the This possibility paper money.” “ he can never expedient,” said, succeed whilst its mischiefs are remembered, and as as it can bo to it long resorted will be a bar to other resources.” Mr. Butler was urgent of such a disarming remarked government power, “ that was a tender in no paper country Europe.” Mr. Mason if there was no replied example Europe was there none in which the on restrained head, and he was averse to the hands of the tying up Mr. legislature altogether.” Langdon preferred reject the whole than retain the words. plan

notes issue of as a The simply quality. borrowing means would leave them which of course to be received at money, does not appear have been the option parties, seriously The circulation notes thus issued a volun- questioned. and their receipt currency character tary payment duties, other taxes, not public expenses, subject objections urged. rule that the aware of the and intentions of opinions amI in its Convention, members of individual expressed are not to control construction debates proceedings, of the Constitution or narrow down- ‍‌‌‌​​​​‌‌‌‌‌​‌‌​‌‌​​​‌‌​​‌​‌​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‍of the plain language confers. it is Members, which that instrument the powers have enter- the debate said, did participate may who those several views from tained different expressed. 3, Papers, vol. page * Madison Cases.. Field, Dissenting opinions. Opinion J. which the State.conventions to Constitution was submitted have from each other and differed from its- widely framers in of its their We all know interpretation clauses. on opposite opinions many points expressed conventions, and reasons were for the both conflicting urged

notes tender, quality oc curred in 1814. The was-then embar greatly rassed from the want of funds to continue the war existing and a Great'Britain, member from introduced Georgia, into the House of several resolutions direct Representatives an into the ing inquiry the Secre expediency authorizing tary to issue notes convenient for circulation Treasury for the provision making purchase each supplies State. the resolutions was one that the Among declaring notes to be issued should be a tender for debts due or due between subsequently citizens of the becoming, United States and citizens and The House foreigners. between

notes country disappearance throughout circulation, coin from it and silver may perhaps gold in, that notes of the inferred, cases, most United States are where silver dollars are not intended parties gold oc in contracts made in the Pacific except expressly designated, wherq has the constitutional con- States, currency always As to contracts, tinued in use. subsequent in its as when is not as unjust provision operation applied to' and does not the same extent contracts, impair past makes so far as it of the But receipt private rights. in absence of notes, parties, compul- agreement such contracts, is, my sory payment judgment, This seems to me to unconstitutional. follow neces- equally mentioned cast from the already upon duty sarily create and maintain a uniform power, coinage —to value standard of Union. Without metallic throughout of some commerce would be kind, a standard of value diffi- if to the uni- cult, just proportion impossible, of the standard is the con- security formity stability How is it extent of commercial transactions. possible sequent fob duty by acceptance discharge making in all future compulsory paper promises dealings prom-— for their value the con- ises necessarily depend in their ultimate entertained public fidence payment, of the holder to convert and the them ability consequent which can never be into uniform promises gold silver— must have different values in Union, dif- throughout York, one value New ferent country; portions and still a different one Orleans, at New at San another Francisco.

Case Details

Case Name: Knox v. Lee

Court Name: Supreme Court of the United States

Date Published: May 18, 1871

Citation: 79 U.S. 457

Court Abbreviation: SCOTUS