Lead Opinion
delivered the opinion of the court.
Thе controlling questions in these cases are the following: Are the acts of Congress, known as the legal tender acts, constitutional when applied to contracts made before their passage; and, secondly, are they valid as applicable to debts contracted since their enactment? These questions have been elaborately argued, and they have received from the court that consideration which their great importance- demands. ' It- would be difficult to overestimate the consequences which must follow7 our decision. They will affect the entire business of .the country, and take hold of the possible continued existence of the government. If it be held! by this court that Congress has no constitutional power, under any circumstances, or iu any emergency, to make-treasury notes a legal tender for the‘pay.ment of all debts (a.’power confessedly possessed by every independent sovereignty other than the United States),'the government is without those means of self-preservation which, all must admit, may, in certain contingencies, become indispensable,, even if they were not when the acts of Congress now called, in qnestiou w7ere'enacted. It is also clear that if we” hold the acts invalid as applicable to debts incurred, or transactions which have taken place since their enactment, our decision must cause, throughout thq country, great business derangement, widespread distress, and the rankest injustice. The debts which have'been contracted since February 25th, 1862, constitute, doubtless, by far the greatest portion of the-existing indebtedness of the country. ' They have been contracted in’ view of the acts of Congress declaring treasury
The consequences of which we have spoken, serious as
Nor can it be questioned that, when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were- granted. - This is a universal rule of construction applied alike to statutes, wills, contracts, aud constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be'construed with reference to that purpose and so as-to subserve
The same may be asserted also of all the nou-enumerated' powers included in the authority expressly given “to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.” It is impossible to know what those non-enumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes, it must be noted, reach beyond the mere-execution of all powers definitely intrusted to Congress aud mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the government of the United States, or iu any department or officer thereof. It certainly was intended to confer upon, tii-e government the power'of self-preservation. Said Chief Justice Marshall, iu Cohens v. The Bank of Virginia
And here it is to be observed it is not indispensable to the' existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to.suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, cither by some one or more of the specifications of power, or by them all combined. And, that important powers were-understood by the" people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of
And it is of importance to observe that Congress has often exercised, without question, powers /that are not expressly' given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the. Constitution, resulting powers, arising from the aggregate powers of the government. He instances .the right to sue and make contracts. Many others might be. given. The oath required bylaw from officers of the government is one. So is building a capitol or a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized “ to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offences against the laws of nations.” It is also, empowered to declare the punishment of treason, and provision is made for impeachments. This is 'the extent of power to punish crime
Indeed the whole history of the government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the "government was framed, and this discretion has geuer.ally been unquestioned, or, if questioned, sanctioned by this court. Tlii? is true not only when an attempt has been
This is enough to show how, from the earliest period of 'our existence as a nation, the powers conferred by the Constitution have been construed by Congress and by this court whenever such action by Congress has been called in ques
It was, however, in McCulloch v. Maryland that the fullest consideration was given to this clause of the Constitution granting auxiliary powers, and a construction adopted that has ever since been accepted as determining its true meaning. We shall not now go over the ground there trodden. It is familiar to the legal profession, and, indeed, to the whole country. Suffice it to say; in that case it was finally settled that in the gift by the Constitution to Congress of authority jo enact laws “ necessary and proper” for the execution of all the powers created by it, the necessity spoken
With these rules of constitutional construction before us, settled at an early period in the history of the government, hitherto universally accepted, and not even now doubted, we have a safe guide to. a right decision of the questions before us. Before' we can hold the legal tender acts unconstitutional, we must be convinced they were not appropriate means, or means” conducive to the .execution of any or all of the powers of Congress, or of the government, not appropriate in any degree (for we are not judges of the degree of appropriateness), or wc must hold that, they were prohibited.
We do not propose to dilate at length' upon the circumstances in which the country was placed, when Congress attempted to make treasury notes a legal tender. They are of too recent occurrence to. justify enlarged ’ description. Suffice it to'saj' that a civil war was then raging which seri-. ously threatened the overthrow of the government and the destruction of the Constitution itself. It demanded the equipment ánd support of large armies and navies, and the employmentof money to an 'extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government, if not stretched to its utmost tension, had become nearly exhausted. Moneyed institutions had advanced! largely of. their means, and more could not be expected of them. They had been compelled to suspend specie payments. Taxation was inadequate to pay even the interest oh the debt already incurred, and it was impossible to await the income of additional taxes. The necessity was immediate and pressing. The army was unpaid. • There was then due to the soldiers in the field nearly a score of millions of dollars. The requisitions from the War and Navy Departments for supplies exceeded fifty millions, and the current expenditure was over one million per day. The entire amount of coin in the country, including that in private hands, as well as that in banking institutions, was insufficient to supply the need of the government three months, had it all been poured into the treasury. Foreign credit we had none. We say nothing of .the overhanging paralysis of trade, and of business gener
It was at such a time and in such circumstances that Congress was called upon to devise means for maintaining the army and navy, for securing the large supplies of money needed, and, indeed, for the preservation of the government created by the Constitution. It was at such a time and in such an emergency that the legal tender acts were passed. Now, if it were certain that nothing else would have supplied the absolute necessities of the treasury, that nothing else would have enabled the government to maintain its armies and navy, that nothing else would have saved the government and the Constitution from destruction, while' the legal tender acts would, could any one be bold enough to assert that Congress transgressed its powers ? Or if these enactments did work these results, can it be maintained now that they were not for a legitimate end, or “ appropriate and adapted'to that end,” in the language of Chief Justice Marshall ? That they did work such results is not to he doubted. Something revived the drooping faith of the people; something brought immediately to the government’s aid the resources of'the nation, and something euabled the successful prosecution of the war, and the preservation of the national life. What was it, if not the legal fender enactments ?
But if it be conceded that some other means might have been chosen for the accomplishment of these legitimate and necessary ends, the' concession does not weaken the argument. It is urged now, after the lapse of nine years, and when the emergency has passed, that treasury notes without the legal tender clause might have been issued, and that the necessities of the government might thus have been supplied. Hence it is inferred there was no necessity for giving to the notes issued the capability of paying private debts. At best this is mere conjecture. But admitting it to be true, what does it prove? Nothing more than that
It is plain to our view, however, that none of those measures which it is now conjectured might have been substituted for the legal tender acts, could have met the exigencies of the case,,at the time when those acts were passed. Wo have said that the credit of the government had been tried to its utmost endurance. Every new issue of notes which had nothing more to rest upon than government credit, must have paralyzed it more and more, and rendered it increasingly difficult to keep the army in the field, or the navy afloat. It is an historical fact that many persons and institutions refused to reeeivd and pay those notes that had been issued, and even the head of the treasury represented to Congress the necessity of making the new issues legal tenders, or rather, declared it impossible to avoid the necessity. The vast body of men in the 'military service was composed of citizens who had left their farms, their workshops, and their business with families and debts to be provided for. ' The government could not pay them with ordinary treasury notes, nor could they discharge their debts
It may be conceded that Congress is not authorized to enact laws in furtherance even of a legitimate end, merely because they are useful, or because they make the government stronger. There must be some relation between the means and the end; some adaptedness or appropriateness of the laws to carry into execution the powers created by the Constitution. But when a statute has proved effective dn the execution of powers confessedly existing, it is not too much to say that it must have had some appropriateness to the execution of those powers. The rules of construction heretofore adopted, do not demand that the relationship between the means and the end shall be direct and immediate. Illustrations of this may bo found in several of the eases above cited. The charter of a Bank of the United States, the priority given to debts due the government over private debts, and the exemption of Federal loans from liability to State taxation, are only a few of the many which might be given.' The case of Veazie Bank v. Fenno
Concluding, then, that the provision which made treasury notes a legal tender for the payment of all debts other than those expressly excepted, was not an inappropriate means for carrying into execution the legitimate powers, of the government, we proceed to inquire whether it was forbidden by the letter or spirit of the Constitution. It is not claimed that any -express prohibition exists, but it is insisted that the spirit of the Constitution was- violated by the enactment. Here those who assert the unconstitutionality of the acts mainly rest their argument. They claim that the clause which conferred upon Congress power “ to coin money, regulate the value thereof, and of foreign coin-,” contains an implication that nothing but that which is the subject of coinage, nothing but the precious metals can ever be declared by law to be money, or to have the uses of mouey. .If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution- has always been construed.. On the contrary it has been ruled that power over a particular subject may be exercised as auxiliary to an express power, though there is another express power re'lat
We do not, however., rest our assertion of the power of Congress to enact legal tender laws upon this grant. We assert only that the grant can, in no just sense, be regarded as.containing au implied prohibition against their enactment, and that, if it raises any' implications, they are of complete power over the currency, rather than restraining.
We come next to the argument much used, and, indeed, the main reliance of those who assert the unconstitutionality of the legal tender acts. It is that they are prohibited by the spirit of the Constitution because.they indirectly impair the obligation of contracts. The argument, of course, relates only to those contracts which were made before February, 1862, when the first act was passed, and it has no bearing upon the question whether the acts are valid when
Nor can it be truly asserted that Congress may- not, by its action, indirectly impair the obligation of contracts, if by the expression be meant -rendering contrasts fruitless, or partially fruitless. Directly it may, confessedly, by passing, a bankrupt act, embracing past as well as future transac
If, then, the legal tender acts were justly chargeable with impairing contract obligations, they would not, for that
Closely allied to the objection we have just been considering is the argument' pressed upon us that the legal tender acts were prohibited by the spirit of the fifth amendment, which forbids taking private^property for public use without just compensation or due process'd" law. That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, ór to inhibit laws that indirectly work harm and loss to individuals. ' A new tariff", an embargo, a draft, or a Avar may inevitably bring upon individuals great lpsses; may, indeed, render .valuable property ■ almost .valueless. They may destroy the worth of contracts. But whoever supposed that, because of this, a tariff" could not be changed, or a non-intercourse act, or an embargo be enacted, or a war be declared ? - By the act of June 28,1834, a new regulation of the Aveight and value of gold coin Avas adopted, and about six per cent. Avas taken from the Aveight of each dollar. The effect of this Avas that all creditors were subjected to a- corresponding loss. The debts then due became solvable with six per cent, less gold than Avas required to pay them before. The result was thus precisely what it is contended the legal tender acts worked. But was it ever imagined this was taking private property without compensation or without due process of laAV ? Was the idea ever advanced that the new regulation of gold coin was against the spirit of the fifth amendment? And has any
We arc nob aware of anything else which has been advanced in support of the proposition that the legal tender acts wore forbidden by either the letter or the spirit of the Constitution. If, therefore, they were, what we have endeavored to show, appropriate means for legitimate ends, they were not transgressive of the authority vested in Congress.
Hero we riiight stop; but we will notice briefly an argument presented in support of the position that the unit of money value must possess intrinsic value. The argument is derived from assimilating the constitutional provision respecting a standard of weights and measures to that, confer
But, without extending our remarks further, it will be seen that we hold the acts of Congress .constitutional as applied to contracts tnade either before or after their passage. In so holding, Ave overrule so much of Avhat was decided in Hepburn v. Griswold,
The other questions raised in the case of Knox v. Lee were substantially decided in Texas v. White.
Judgment in each case aeeirmed.
Notes
4 Binney, 123.
6 Crunch, 87.
4 Id. 405.
Fisher v. Blight,
8 Wallace. 603.
8 Wallace, 533.
United States v. Marigold,
Apsden v. Austin, 5 Adolphus & Ellis, N. S. 671; Dunn v. Sayles, Ib. 685; Coffin v. Landis,
Davies, 28; Barrington v. Potter, Dyer, 81, b., fol. 67; Faw v. Marsteller,
Dobbins v. Brown, 2 Jones (Pennsylvania), 75; Workman v. Miffrin, 6 Casey, 362.
Gibbons v. Ogden,
8 Wallace, 603.
Briscoe v. Bank of Kentucky,
7 Wallace, 700.
Hepburn v. Griswold, 8 Wallace, 632.
Concurrence Opinion
concurring :
I concur in the opinion just read, and should feel that it was out of place to add anything further on the subject were it not for its great importance. Ou a constitutional question involving the powers of the government it is proper that every aspect of it, and every consideration bearing upon it, should he presented,'and that no member of the court should hesitate to express his views. I do not propose, however, to go into the subject at large, but only to make such additional observations as appear to me proper for consideration, at the risk,of some inadvertent repetition.
The Constitution of the United States established a gov
The doctrine so long contended-for, that the Federal Union was a mere compact of States, and that the States, if they chose, might annul or disregard the acts of the National legislature, or might secede from the Union at their pleasure, and that the General government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally effected by the National power, as it had often been before, by overwhelming argument.
. The United Statés is not ouly a government, but it is.a National government, and the only government in this country that has the character of nationality,. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse witii other nations; all which are forbidden to the State governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, such as the coinage, weights and measures, bankruptcies, the postal system, patent and copyright laws, the public lands, and interstate commerce; all which subjects are expressly or impliedly prohibited to the State governments. It- has power to suppress insurrections, as well as to repel invasions, and to organize, arm, discipline, and call into service the militia of the whole country. The Presi
Such being the character of the General government, it seems to be a self-evident propositi on that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution,.were generally considered to belong to every government as such, and as being essential to the exercise of its functions. ' If this proposition be not true, it certainly is true that the government of the United .States has express authority, in the clause last quoted, to make all sucli laws (usually regarded as inherent and implied) as -miay be necessary and proper for carrying, on the government as constituted, and vindicating its authority and existence.
Another proposition equally clear is, that at the time the Constitution was adopted, it was, and had for a long time . been, the practice of most, if not all, civilized governments, to employ the public credit as a .means of anticipating the national revenues for the purpose of enabling them to exer cise their governmental functions, and to meet the various exigencies to-which all .nations are subject; and that the mode of employing the public credit was various in different' countries, and at diffеrent periods — sometimes by the agency
Massachusetts and other colonies, on the breaking out of the war, disregarded the prohibition of Parliament, and agaiu conferred upon th.eir bills the quality of legal tender.
■ These precedents are cited without reference to the policy ■or impolicy of the several measures in the particular cases; that is always a question for the legislative discretion. They establish the historical fact that when the Constitution was adopted, the employment of bills of credit was deemed a legitimate means, of meeting the exigencies of a regularly constituted government, aud that the affixing to them of the quality ot' a legal tender was regarded as entirely discretionary with the legislature. Such a quality was a mere incident that might or might not be annexed. The Continental Congress not being a regular government, and not having the power to make laws for the regulation of private transactions, referred the matter to the State legislatures. The framers of the Constitution w'ere familiar with all this history. They were familiar with the governments which had thus exercised the prerogative of issuing bills having the quality, and intended for the purposes referred to. They had first drawn their breath under these governments; they
In view, therefore, of all these facts when we find them establishing.the present government,' with all the power before rehearsed, giving to it, amongst other things, the sole control of the money of the' country and expressly prohibiting the States from issuing bills of credit and from making anything but gold and silver a legal tender, and imposing no such restriction upon the General government, how can we resist the conclusion that they intended to leave to it that power unimpaired, in case the future exigencies of the nation should require its exercise?
I am aware that according to the report of Mr. Madison-in the original draft of the Constitution, the clause relating to the borrowing of money read, “ to borrow money and emit bills on the credit of -the United States,” and that the words, “ and emit bills,” were, after some debate, struck out. But they were struck out with diverse views of members, some deeming them useless and others deeming them hurtful.. The result was that they chose- to adopt the Constitution as it now stands, without any words cither of grant or restriction of power, and it is-our duty to construe the instrument by its words, in the light of-history, of the general nature of government, and the incidents of sovereignty.
The same argument was employed against, the creation of a United States bank. A power to create corporations was .proposed in the Convention arid rejected. The power was proposed with a limited application to cases where -the public good might’require them and the authority of a siugle State might be incompetent. It' was still rejected.' It was ^then confined to the building of canals, but without effect. It was argued that such a power was unnecessary and might be dangerous. Yet Congress-has not only chartered two-United States banks, whose constitutionality has been sus- • taiued by this court, but several other institutions. As a means appropriate and conducive to the end of carrying into effect the other powers of the government, such as that of borrowing- money with promptness, and dispatch, and
No one doubts at the present day nor has ever seriously doubted that the power of the government to emit bills exists. It has been exercised by the government without question for a large portion of its history. This being conceded, the incidental power of giving such bills the quality of legal tender follows almost as a matter of course.
I hold it to be the prerogative of every government not restrained by its Constitution to anticipate its resources by the issue of exchequer bills, bills of credit, bonds, stock, or a banking apparatus. Whether those issues shall or shall not be receivable in payment of private debts is an incidental matter in thediscretion of such government unless restrained by constitutional prohibition.
This-power is entirely distinct from that of coining money and regulating the value thereof. It is not only embraced in the power to make all necessary auxiliary laws, but it is incidental to the power of borrowing money. It is often a necessary means of anticipating and realizing promptly the national resources, when, perhaps, promptness is necessary to the national existence. It is not an attempt to coin money out of a valueless material, like the coinage of leather or ivory or kowrie shells. It is .a pledge of the national credit. It is a promise by the government to pay dollars; it is not an attempt to make dollars. The standard of value is not changed. The government simply demands that its credit shall be accepted and received by public and private creditors during the pending exigency. 'Every government
But it is said, why not borrow money in the ordinary way? The answer is, the legislative department, being the natiou itself, speaking by its representatives, has a choice of methods, and is the master of its own discretion. One mode of borrowing, it is true, is to issue the government bonds, and to invite capitalists to purchase them. But this is not the only mode. It is often too tardy and inefficient. In time of war or public danger, Congress, representing the sovereign power, by its right of eminent domain, may authorize the President to take priváte property for'the public use and give government certificates therefor. This is largely done • on such occasions. It-is an indirect way of compelling the owner of property to lend to the government. He is forced to rely on the national credit.
Can the poor man’s cattle, and horses, and corn be thus taken by the government when the public exigency requires it, and cannot the rich man’s bonds and notes be in like manner taken to reach the same end? If the government enacts that the certificates of indebtedness which it gives to-the farmer for his cattle and provender shall be receivable-by the farmer’s creditors in payment of his bonds and notes,, -is it anything more than transferring the government loan from the hands of one man to the hands of another — perhaps far more able to advance it ? Is it anything more than, putting the securities of the capitalist on the same platform-as the farmer’s.stock?
No one supposes that these government certificates are never to be paid — that the day of specie.payments is never to return. And it matters not in what form they are issued.. The principle is still the same. Instead of certificates they may be treasury notes, or paper of any other form. And their payment.may not be made directly in coin, but they may be first convertible into government bonds, or other-
Another ground of the power to- issue treasury notes or bills is the necessity of providing a proper currency for the country, and especially of providing for the failure or disappearance of the ordinary currency in times of financial pressure and threatened collapse of commercial credit. Currency is' a national necessity. The operations of the government, as well as private transactions, are wholly dependent upon it. The State governments are prohibited from making money or issuing bills. Uniformity of money was one of the objects of the Constitution. The coinage of money and regulation of its value is conferred upon the General government exclusively. That government has also the power to issue bills. It follows, as a matter of necessity, as a consequence of these various provisions, that, it is specially the duty of the General government to provide a National ■currency. The States cannot do it, except by the charter of local banks, and that remedy, if strictly legitimate and constitutional, is inadequate, fluctuating, uncertain, and insecure, and operates with all the partiality to local interests, which, it was the very object of the Constitution to avoid. ¡But regarded as a duty of the General government, it is
It is absolutely essential to independent national existence that government should have a firm hold on the two great sovereign instrumentalities of the sword and the purse., and the right to wield them without restriction on occasions of national peril. In certain emergencies government must have at its command, not onlj? the personal services — the bodies and lives — of its citizens, but the lesser, though not less essential, power of absolute control ovеr the resources of the country. Its armies must be filled,, and its navies manned, by the citizens in .person. Its material of war, its munitions, equipment, and commissary stores' must come from the industry of the country. This can only be stimu-. lated into activity by a proper financial system, especially as regards the currency.
A constitutional' government, notwithstanding the right of eminent domain, cannot take physical and forcible possession of all that it may heed to defend the country, and is reluctant to exercise such a power when it can be avoided. It must purchase, and by purchase command materials and supplies, products of manufacture, labor, service of every kind. The government cannot, by physical power, compel the workshops to turn out millions.of dollars’ worth of manufactures in leather, and cloth, and wood, aud iron, which are the very first conditions of military equipment. Tt must stimulate and set iu motion the industry of the country. In other words, it must purchase. But it cannot purchase with specie. That is soon exhausted, hidden, or exported. It must purchase by credit. It cannot force its citizens to take its bonds. It must be able to lay its hands' on the currency — that great instrument- of exchange by which the people transact all their own affairs with.each other; that thing which they must have, aud which lies at the foundation of all industrial effort and all business in the community. When the ordinary currency disappears, as it often does in time of war, when business begins to stagnate and general bankruptcy is imminent, then the government
These views are exhibited, not for the purpose of showing that the power is a desirable one, and therefore ought to be assumed; much less for the purpose of giving judgment on the expediency of its dxercise in any particular case; but for the purpose of showing that it is one of those vital and essential powers inhering in every national sovereignty and necessary to its self-preservation.
But 'the creditor interest will lose' some of its gold ! Is gold the one thing needful ? Is it worse for the creditor to' lose a little by depreciation than everything by the bankruptcy of his debtor? Nay, is it worse than to lose everything by the subversion of the government? What is it that protects him in the accumulation and possession of his wealth ? Is it not the government and its laws ? and can he not consent to trust that government for a brief-period until it shall have vindicated its right to exist?. All property and all rights, even those of liberty and life, are held subject to the fundamental condition of being liable to be impaired by providential calamities and national vicissitudes. Taxes impair my income or the value of my property. The con
Another consideration bearing upon this.objection is the fact that the power given to Congress to coin money and regulate the yalue thereof, includes the power to álter the metallic standard of coinage, as was done in 1884; whereby contracts made before the alteration, and payable thereafter, were satisfied by the payment of six per cent, less of pure gold than was contemplated wheu the contracts were made.'. This power and this consequence flowing from its exercise, were much discussed in the great ease of Mixed Moneys, in Sir John Davies’s Deports,
It follows as a corollary from these views, that it makes no difference in the principle of the thing, that the contract of the debtor is a specific engagement, iii terms, to pay gold or silver money, or to pay in specie. So long as the money of the country, in whatever terms described, is in contemplation of the parties, it is the object of the legal tender laws to make the credit of the government a lawful substitute therefor. If the contract is for the delivery of a chattel or a specific commodity or substance, the law does not appty. If it is bond fide for so many carats of diamonds or so many ounces of gold as bullion, the specific contract must be performed. But if terms which naturally import such a contract are' used by way of evasion,- and money only is intended, the law reaches the case. Not but that Congress might limit the operation of the law in any way it pleased. Tt might make an exception of cases where the contract expressly promises gold and silver money.. But if it has not done so; if the enactment is general in its terms, specific promises to pay the money in specie are just as much subject to the operation of the law as a mere promise to pay so many dollars* — for that, in contemplation of law, is a promise to pay money in specie.
Hence- Ldiffer from my brethren in the decision of one of the bases now before the court, to wit, the case of Tribilcock v. Wilson
It follows as another corollary from the views which I have expressed that the power to make treasury notes a legal tender, whilst a mere incidental one to that of issuing the notes themselves, and to one of the forms of borrowing money, is nevertheless a power not to be resorted to except upon extraordinary and pressing occasions, such as-war or other public exigencies of great gravity and importance; and should be no longer exerted than all the circumstances' of the case demand.
I do not say that it is a war power, or that it is only to be called into exercise in- time of war; for other’public exigencies may arise in the history of a nation which may make it expedient and imperative to exercise it. But of the occasions when, and. of the times how long, it shall be exercised and in force, it is for the legislative department of the government to judge. Feeling sensibly the judgments and1 wishes of the people, that department cannot long.(if it is proper to suppose that within its sphere it ever can) misunderstand the business interests and j list rights of the community.
I deem it unnecessary to enter into a minute criticism of all the sayings, .wise or foolish, that have, from time to time, been uttered on this subject by statesmen, philosophers, or theorists. The writers on political economy are generally opposed to the exercise of the. power'. The considerations which they adduce are very proper to be urged upon the depositary of the power. The question whether the power exists in a national government, is a great practical questiqn relating to the national safety and independence, and states
Great stress ha!? been laid on the supposed fact that England in all its great wars and emergencies, has never made its .exchequerMils a legal tender. ■ This imports a eulogium on British conservatism in relation to contracts, which that nation would hardly regard as flattering. It is well known that for over twenty years, from 1797 to 1820, the most stringent paper money system that over existed prevailed in England, and lay at thq foundation of all her elasticity and endurance. It is true tljat the Bank of England notes, which the bank was required to issue until they reached an amouut then unprecedented, weife not technically made legal tenders, except for the purpose ,of relieving from arrest and imprisonment for debt; but worse than that, the bank was expressly forbidden to redeem its notes in specie, except for a certain small amount to answer the purpose of change. The people were obliged to receive them. The government had nothing else wherewith to pay its domestic creditors. The people themselves had no specie, for that was absorbed by the Bank of England, and husbanded for the uses of government in carrying on its foreign wars and paying its foreign subsidies. The country banks depended on the Bank of England for support, and of course they could not redeem their circulation- in specie. The result was that the nation was perforce obliged to treat the bank notes as a legal tender or suffer inevitable bankruptcy. In such a state of things it. went very hard with any man who demanded specie in •fulfilment of his contracts. A man by the name of Grigby tried it, and brought his case into court, and elieited from
It is well known that since the resumption of specie payments, the act of 1833, rechartering the bank, has expressly made the Bank of England notes a legal tender.
It is unnecessary to refer to other examples. France is a notable one. Her assignats, issued at the commencement and during the Revolution, performed the same office as our Continental bills; and enabled the nation to gather up its latent strength and call out its energies. Almost every nation of Europe, at one time or another, has found it necessary, or expedient, to resort to the same method of carrying on its operations or defending itself against aggression.
It would be sad, indeed, if this great nation wore now to be deprived Of a power so necessary to enable it to protect its own existence, and to copе with the oilier great powers of the world. No doubt foreign powers would rejoice if we should deny the po-wer. No doubt foreign creditors would rejoice. They have, from the first, taken a'deep interest in the question. But no true friend to our government, to its stability and its power to sustain itself under all vicissitudes, can be indifferent to the great wrong which it would sustain by a denial of the power in question — a power to be seldom exercised, certainly; but one, the possession of which is so'essential, and as it seemslo me, so undoubted.
Regarding the question of power as so important to the stability of the government, I eahnot acquiesce in the decision of Hepburn v. Griswold, I cannot consent that the government should be deprived of one of its just powers by a decision made at the time, and under the circumstances, in which that decision was made. On a question relating to the power of the government, where I am perfectly satisfied that it has the power, I can never consent to abide by a decision denying it, unless made with reasonable una
In my judgment the decrees in all the cases before us should be affirmed.
Franklin’s Works, vol. 8, p. 329.
Ib. p. 507.
Journals of-Congress, vol. 3, p. 19-20; Pitkin’s History, vol. 2, p. 155
Bancroft’s History, vol. 7, p. 324.
Page 48.
See infra, 687.
2 Bosanquet & Puller, 528.
Dissenting Opinion
dissenting:
We dissent from the argument and conclusion in the opinion just announced.
The rule,'by which the constitutionality of an act of Congress passed in the alleged exercise of an implied power is to be tried, is no longer* in this.court, open to question. It was laid down in the case of McCulloch v. Maryland
And it is the plain duty of the court to pronounce acts of
Neither of these propositions was questioned in the case of Hepburn v. Griswold.
In the case of the United States v. De Witt,
We agree, then, that the question whether a law is a necessary and proper means to execution of ah express power, within the meaning of these words as defined by the rule — that is to say, a means appropriate, plainly adapted, not prohibited but consistent with the letter and spirit of the Constitution, — is a judicial question. Congress may not adopt any means for the execution of an express power that Congress maj'' see fit to adopt. It must be a necessary and
A majority of the court, five to four, in the opinion which has just been read, reverses the judgment rendered by the former majority of five to three, iu pursuance of an opinion formed after repeated arguments, at successive terms, and careful consideration; and declares the legal tender clause to be constitutional; that is to say, that an act of Congress making promises to pay dollars legal tender as coined dollars in payment of pre-existing debts is a means appropriate and plainly adapted to the exercise of powers expressly granted by-the Constitution, and not prohibited itself by the Constitution but consistent with its letter and spirit. And this reversal, unprecedented in the history of the court, has been produced by no change in the opinions of those who concurred in the former judgment. One closed an. honorable judicial career by resignation after the case had been decided,
Their convictions, however, remain unchanged. Wе adhere to the opinion pronounced in Hepburn v. Griswold. Deflection has only wrought a firmer belief in the soundness of the constitutional doctrines maintained, and in the importance of them to the country. .
There appears, therefore, to have been no real difference of opinion in the court as to the rule by which the existence of an implied power is to be tested, when Hepburn v. Griswold was decided, though the then minority seem to have supposed there was. Tlie difference had reference to the application of the rule rather than to the rule itself.
The the if minority admitted that in the powers relating to coinage, standing alone, there is not “ a sufficient warrant for the exercise of the power ” to make notes a legal tender, but thought them “ not without decided weight, when we come to consider the question of the existence of this power as one necessary and proper for carrying into execution other admitted powers of the government.” This weight they found in the fact that an “ express power over the lawful money of the country was confided to Congress apd forbidden to the States.” It'seemed to them not an “ unreasonable inference ” that, in a certain contingency, “ making the securities of the government perform thb office of money in the payment of debts would be in harmony with the power expressly granted to coin money.” We perceive no connection between the express power to coin money and the inference that the government may, in any contingency, make its securities perform the functions of coined money, as a legal tender in payment of debts. We have supposed that the power to exclude from circulation • notes not authorized by the national government might, perhaps, be deduced from the power to regulate the value of coin; but that the power of the government to emit bills of credit.was an exercise of the power to borrow money, and that its power over the currency was incidental to that power and to the
Was, then, the power to make these notes of-the government — these bills of credit — a legal tender in payments an appropriate, plainly-adapted means to a legitimate and constitutional end 1 'or, to státe the question as the opinion of the then minority stated it, “ does there exist any power in Congress, or in the government, by express grant,- in execution of which this legal tender act was necessary and proper in the sense here defined and under the circumstances of its passage ? ”
The opinion of the then minority affirmed the power on the ground that it was a necessary and proper means, within the definition of the court, in the case of McCulloch v. Maryland, to carry on war, and that it was not prohibited by the spirit or letter of the Constitution, though it was admitted to be a law impairing the obligation of contracts, and notwithstanding the objection that it deprived many persons of their property without compensation and. without' due process of law.
We shall not add much to what was said in the opinion • of the then majority on these points.
The reference made in'the opinion just read, as well as in the argument at the bar, to the opinions of the Chief Justice, when Secretary of the Treasury, seems to warrant, if it does not require, some observations before proceeding further in the discussion.
It was his fortune at the time the legal tender clause was inserted in the bill to authorize the issue of United States notes and received the sanction of Congress, to be charged with the anxious and responsible duty of providing funds for the'prosecution of the war. In no report made by him to Congress was the expedient of making the notes of the
Now it is a common error, and in our judgment it was the error of the opinion of the minority in Hepburn v. Griswold, and is the error of the opinion just read, that considerations pertinent to the issue of United States notes have been urged in justification of making them a legal tender. The real question is, was the making them a legal tender a necessary means to the execution of the power to borrow money? If the notes would circulate as well without as with this quality it is idle to urge the plea of such necessity. But the circulation of the notes was amply provided for by making them receivable for all national taxes, all dues to the government, and all loans. This was the provision relied upon for the purpose by the secretary when the bill was first prepared, and his reflections since 'have convinced him that it was sufficient. Nobody could pay a tax, or any debt, or buy a boiid without using -these notes. As the notes, not being immediately redeemable, would undoubtedly be cheaper than coin, they would be preferred by debtors and purchasers. They would thus, by the universal law of trade, pass into general circulation. As long as they were maintained by the government at or near par value-of specie they would be accepted in payment of all dues, private as well as public. Debtors as a general rule would pay in nothing else unless compelled by suit, and creditors would accept them as long as they would lose less by acceptance than by suit. In new transactions, sellers would demand and purchasers would.
The best support for note circulation is not. limitatiph, but receivability, especially for loans bearing coin interest. 'This support was given until the fall of 1864, when a loan bearing increased currency interest, payable in three years .and convertible into a loan bearing, less coiir interest, was substituted for the six per cent, and five per cent, loans bearing specie interest,, for which the notes had been previously received.
It is plain that a currency so supported cannot depreciate more than the loans; in other.words, below the general •credit of the country. It will rise or fall with it. At the ¡present moment, if the notes were received for five per cent.
Now, does making'the notes a legal tender increase their value? It is said that it does, by giving them a new use. The best political economists say that it does not. When the government compels the people to receive its notes, it virtually declares that it does not expect them to be received, without compulsion. It practicаlly represents itself insolvent. This certainly does not improve the value of its notes. It is an element of depreciation. In addition, it creates a powerful interest in the debtor class and in the purchasers of bonds to depress to the lowest poiut the credit of the notes. The cheaper these become, the easier the payment of debts, and the more profitable the investments in bonds bearing coin interest.
On the other hand, the higher prices become, for everything the government needs to buy, and the greater the accumulation of public as well as private debt. It is true that such a state of things is acceptable to debtors, investors in bonds, and speculators. It is their opportunity of relief or wealth. And many are persuaded by their representations that the forced circulation is not only a necessity but a benefit. But the apparent benefit is a delusion and the necessity imaginary. In their legitimate use, the notes are hurt not helped by being- made a legal tender. The legal tender quality is only valuable for the purposes of dishonesty. Every honest purpose is answered as well and better with- . out it.
We have no hesitation, therefore, in declaring our conviction that the making of these notes a legal tender, was not a necessary or proper means to the carrying on war or to the exercise of any express power of the government.
But the absence of necessity is. not our only, or our weightiest objection to this legal tender clause. We stilL think, notwithstanding the argument adduced to the contrary, that it does violate an express provision of the Constitution, and the spirit, if not the letter, of the whole instrument. It cannot be maintained that legislation justly
The fifth amendment provides that no person shall be deprived of life, liberty, or property without compensation or due process of law. The opinion of the former minority says that the argument against the validity of the legal tender clause, founded on this constitutional provision, is “ too vague for their perception.” It says that a “ declaration of war would be thus unconstitutional,” because it might depreciate the value of property; and “the abolition of tariff on"sugar, or iron,” because it might déstroy the capital employed in those manufactures; and “the successive issues of government bonds,” because they might make those already in private hands less valuable. But it seems to have escaped the attention of the then minority that to declare war, to lay and repeal taxes, and to borrow money, are all express powers, and that the then majority were opposing thé prohibition of the Constitution to the claim of an implied power. Besides, what resemblance is there between the effect of the exercise of these express powers and the operation of the legal tender clause upon pre-existing debts? The former are indirect effects of the exercise of undisputed .powers. The latter acts directly upon the relations of debtor and creditor. It violates that fundamental principle of all just legislation that the legislature shall not take the property-of A. and give it to B. It says that B., who has purchased a.farm of A. for a certain price, may keep the farm without paying for it, if he will only tender certain notes which may bear some proportion to the price, or be even worthless. It seems to us that this is a manifest violation of this clause of the Constitution.
We think also that it is inconsistent with the spirit of the Constitution in that it impairs the obligation of contracts. In the opinion of the then minority it is frankly said: “Undoubtedly it is a lawr impairing the obligation of contracts made
That Cougress possesses the general power to impair the obligation of contracts is a proposition which, to use the language of Chief Justice Marshall,
And if the property of an individual cannot be transferred to the public, how much less to another individual?
- These remarks of Chief Justice Marshall were made in a ease in which it became necessary to determine whether a certain act of the legislature of Georgia was within the constitutional prohibition against impairing the obligation of contracts. And they assert fundamental principles of society and government in which that prohibition had its origin,
It is unnecessary to say that we reject wholly the doctrine, advanced for'the first time, we believe, in this court, by the present majority, that the legislature has any “powers under the Constitution which grow out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted by it.”- If this proposition be admitted, and it be also admitted that the legislature is the sole judge of the necessity for the exercise of such powers, the government becomes practically absolute and unlimited.
Our observations thus far have been directed to the question of the constitutionality of the legal tender clause and its operation upon contracts made before the passage of the law. We shall now consider whether it be constitutional in ' its application to contracts made after its passage. In other words, whether Congress has power to make anything but coin a legal tender.
And here it is well enough again to say that we do not question the authority to issue notes or to fit them for a circulating medium, or to promote their circulation by providing for their receipt in payment of debts to the government, and for redemption either in coin or in bonds; in short, to adapt them to use as currency. Nor do we question the
But the terms of the only express grant in the Constitution of power to establish such a standard leave little room for presumptions. The power conferred is the power to coin-money, and these words must be understood as they were
It is true that notes issued by banks, both in England and America, were .then in circulation, and were used in exchanges, and in common speech called money, and that bills of credit, issued both by Congress and by the States, had been recently in circulation under the same general name; but these notes and bills were never regarded as real money, but were always treated as its represensatives only, and were described as currency. The legal tender notes themselves-do not purport to be anything else than promises to pay money. They have been held to be securities, and therefore exempt from State taxation ;
The power to coin money was a power to determine the fineness, weight, and denominations of the metallic pieces by which values were to be measured; and we do not perceive how this meaning can be extended without doing violence to the very words of the Constitution by imposing on them a sense they were never intended to bear. This construction is supported by contemporaneous and all subsequent action of the legislature; by all the recorded utterances of statesmen and jurists, aiid the unbroken tenor of judicial opinion until a very recent period, when the excitement of the civil war led to the adoption, by many, of different views.
The papers of the Federalist, widely circulated in favor of the. ratification of the Constitution, discuss briefly the power to coin money, as a power to fabricate metallic money, •without a hint that any power to fabricate money of any other description was given to Congress;
Acting upon the same views, Congress took measures for the establishment of a mint, exercising thereby the power to coin money, and has continued to exercise the same power, in the same way, until the present day. It established the dollar as the money unit, determined the quantity and quality of gold and silver of which each coin should consist, and prescribed the denominations and forms of all coins to bo issued.
Statesmen who have disagreed widely on other points have agreed in the opinion that the only constitutional measures of value are metallic coins, struck as regulated by the authority of Congress. Mr. Webster expressed not only his opiuion but the universal and settled conviction of
And-this court, in Gwin v. Breedlove;
The present majority of the court say that legal tender notes “ have become the universal measure of values,” and they hold that the legislation of Congress, substituting such measures for coin by making the notes a legal tender in payment, is warranted by the Constitution.
But if the plain sense of words, if the contemporaneous exposition of parties, if common consent iu understanding, if the opinions of courts avail anything in determining the meaning of the Constitution, it seems impossible to doubt that the power to. coin moqey is a power to establish a uniform standard of value, and that no other power to establish such a standard, by making notes a legal tender, is conferred upon Congress by the Constitution.
8 Wallace, 606.
9 Id. 41.
27th November, 1869,
29th January, 1870.
31st January, 1870.
1 Story on the Constitution, p. 42, § 1251.
8 Wallace, 548.
Letters of the Secretary of the Treasury to the Committee of Ways and Means, January 22 and 29, 1862; Spaulding’s Financial History, pp. 27,46, 54.
Fletcher v. Peck
Ibid. 135.
Calder v. Bull,
Bank v. Supervisors, 7 Wallace, 31.
3 Madison's Papers, 1346.
See infra, pp. 653, 656. — Rep.
Dawson’s Federalist, 294.
1 Stat, at Large, 225, 246. and subsequent acts.
4 Webster’s Works, 271, 280.
9 Id. 567.
Dissenting Opinion
dissenting:
Money, in the constitutional sense, means coins of gold and silver, fabricated and stamped by authority of law as a measure of value, pursuant to the power vested in Congress by the Constitution.
■ Coins of copper may also be minted for small fractional circulation, as authorized by law and the usage of the government for eighty years, but it is not necessary to discuss that topic at large in this investigation.
Even the authority of Congress upon the general subject does not extend beyond the power to coin money, regulate the value thereof and of foreign coin.
Express power is also conferred upon Congress to fix the standard of weights and measures, and of course that standard, as applied to- future transactions, may be varied or changed to promote the public interest, but the grant of power in respect to the standard of value is expressed in more guarded language, and the grant is much more restricted.
Power to fix the standard of weights and measures is evidently a power, of comparatively wide discretion, but the power to regulate the value of the money authorized by the Constitution to be coined is a definite and precise grant of power, admitting of very little discretion in its exercise, and is not equivalent, except to a very limited extent, to the power to fix the standard of weights and measures, as the money authorized by that clause of the.Constitution is coined money, and as a necessary consequence.must be money of actual value, fabricated from the precious metals generally used for that purpose at the period when the Constitution was framed.
Intrinsic value exists in gold and silver, as well before as after it is fabricated and stamped as coin, which shows conclusively, that the principal discretion vested in Congress under that clause of the Constitution consists in the power to determine the denomination, fineness, or value and description of the coins .to be struck, and the relative proportion of gold or silver, whether standard or pure, and the proportion of alloy to be used in minting-the coins, and . to prescribe the mode in which the intended object of the grant shall be accomplished and carried into practical effect.
■ Discretion, to some extent, in prescribing the value of the coins minted, is beyond doubt vested in Congress, but the plain intent of the Constitution is that-Congress, in determining that matter, shall be governed chiefly- by the weight and intrinsic value of the coins, as it is clear that if the-stamped value of the same should much exceed the real value of gold and silver not coined, the minted coins would, immediately cease tó be either-current coins or a standard of value as contemplated by the Constitution.
Paper emissions have, at one time or another, been authorized and employed as currency by most commercial nations,-
Associated as the grant to coin money and regulate the value thereof is with the grant to fix the standard of weights and measures, the conclusion, when that fact is properly weighed in connection with the words of the grant, is irresistible that the purpose of the framers of the Constitution was to provide a permanent standard of value which should, at all times and under all circumstances, consist of coin, fabricated and stamped, from gold and silver, by authority of law, and that they intended at the same time to withhold from Congress, as well as from the States, the power to substitute any other money as a standard of value in matters of finance, business, trade, or commerce.
Support to that view may also be drawn from the last words of the clause giving Congress the unrestricted power to regulate the value of foreign coin, as it would be difficult if not impossible to give full effect to the standard of value
Exclusive power to regulate the alloy and value of the coin struck by their own authority, or by the authority of the States, was vested' in Congress under the Confederation, but the Congress was prohibited' from euacting any regulation as to the value of the coins unless nine States assented to the proposed regulation.
Subject to the power of Congress to pass such regulations it is unquestionably true that the States, under the Confederation as well as the United States, possessed the power to coin money, but the Constitution, when it /was adopted, denied to the States all authority upon the subject, and also ordained that they should not make anything but gold and silver coin a tender in payment of debts.
Beyond all doubt the framers of the Constitution intended that the money unit of the United States, for measuring values, should be one dollar, a3 the word dollar in the plural form is employed in the body of the Constitution, and also in the seventh amendment, recommended by Congress at its first session after the Constitution was adopted. Two years before that, to wit, July 6, 1785, the Congress of the Confederation enacted that the money unit of the United States should “ be one dollar,” and one year later, to wit, August 8, 1786, they established -the standard for gold and silver, and also provided that the money of account of the United States should correspond with the coins established by law>
On the 4th of March, 1789, Congress first assembled under the Constitution, and proceeded without unnecessary delay to enact such laws as were necessary to put the government in operation which the Constitution had ordained and established. Ordinances had been passed during the Confedera
Duties of tonnage and import duties were required, by the act of the 31st of July, 1789, to be paid “in gold and silver coin,” and Congress in the same act adopted comprehensive regulations as to the value of foreign coin, but no provision was made for coining money or for a standard of value, except so far as that subject is involved in the regu- • lation as to the value of foreign coin, or for a money unit, nor was any regulation prescribed as to the money of account. Revenue for the support of the government, uuder those regulations, -was tó be derived solely from duties of tonnage and import duties, and the express provision was that those' duties should be collected in gold and silver coin.
Legislation under the Constitution had proceeded thus far before the Treasury Department was created. Treasury regulations for the collection, safe-keeping, and disbursement of the public moneys became indispensable, and Congress, on the 2d September, 1789, passed the act to establish the Treasury Department, which has ever since remained in force.
Moneys collected from duties of tonnage and from import duties constituted at that period the entire resources of the national treasury, and the antecedent act of Congress, providing for the collection of those duties, imperatively required that all such duties should be paid in gold ami silver coin, from which it follows that the moneys mentioned in the act creating the Treasury Department were moneys of gold and silver coin' which were collected as public revenue from the duties of tonnage and import duties imposed by the before-mentioned prior acts of Congress. Appropriations made by Congress were understood as appropriations of moneys in the treasury, and all warrants issued by the Secretary of the Treasury were understood to be warrants for the payment of gold and silver coin. Forms for keeping and stating accounts, and for making returns and for warrants for'moneys to.be issued from the treasury were prescribed, and in all those forms the Secretary of the Treasury adopted the money unit recognized in the Constitution,and which had been ordained four years before by the Congress of the Confederation,
Argument to show that the national treasury was organized on the basis that the gold and silver coins of the United States wore to be the standard of value is unnecessary, as it is a historical fact which no man or body of men can ever successfully contradict. Public attention had been directed to the necessity of establishing a mint for the coinage of gold and silver, several years before the Convention met to frame the Constitution, and a committee was appointed by the Congress of the Confederation to consider and report upon the subject. They reported on the 21st February,
Congressional legislation organizing the new government had now progressed to the poi'nt where it became necessary to re-examine that subject and to make provision for the exercise of the power to coin money, as. authorized by the Constitution. Pursuant to that power Congress, on April' 2d, 1792, passed the act establishing a mint for the purpose of a national coinage, and made provision, among other things, that coins of gold and silver, of certain fineness and weight, and of certain, denominations, value and descriptions, should be from time to time struck and coined at the said mint. Specific provision is there made for coining gold and silver coins, as follows: First, gold coins, to wit: Eagles-of the value of ten dollars or units: half-eagles of the value' of five dollars: quarter-eagles of the value of two aud a half' dollars, the act specifying in each case the number of grains- and fractions of a grain the coin shall contain, whether fabricated from pure or standard gold. Second, silver coins, to wit: “ Dollars or units,” each to contain 371 grains and. -^ths parts of a grain of pure silver, or 416 grains of standard silver. Like provision is also made for the coinage of half-dollars, quarter-dollars, dimes, and half-dimes, and also for the coinage of certain copper coins, but it is not. necessary to enter much into .those details in this case.
Provision, it must be conceded, is not there made, in express-terms, that the money unit of the United States shall be one dollar, as in the ordinance passed during the. Confederation, but the act under consideration assumes throughout that the
•Enough has already been remarked to show that the money unit of the United States is the coined dollar, described in the act establishing the mint, but if more be wanted it will be found in the 20th section of that act, which provides that the money of account of the United States shal . be expressed in dollars or units, dimes or tenths, &c., .and that all accounts in the public offices and all proceedings in the Federal courts shall be kept and had in conformity to that regulation.
Completed, as the circle of measures adopted by Congress
Perfect consistency characterizes the measures of that entire period in respect to the matter in question, and it would bo strange if it had been otherwise, as the whole series of measures were to a very largo extent the doings of the same class of men, whether the remark is applied to the old Congress, or the Convention which framed the Constitution, or to the first and second sessions of the new Congress which passed the laws referred to and pat the new system of government under the Constitution into full operation. Wise and complete as those laws were, still some
Congress established frs the money unit the coin mentioned in the Constitution, any1 the one which had been adopted as such seven years before in the resolve passed by the Congress of the Confederation. Dollars, and decimals of dollars, were adopted as the money of account by universal consent, as may be inferred from the unanimity exhibited by the States in following the example of Congress. Nothing remained for Congress to do to perfect the new system but to execute the power to coin money and regulate the value thereof, as it is clear that the Constitution makes no provision.for a standard of value unless the power to establish it is conferred by that grant.
Power to fix the standard of rveights and measures is vested in Congress by the Constitution in plain and uuam
^ New regulations became necessary, and were passed in the méautime, increasing slightly the. proportioh of alloy used in fabricating the gold coins, but if those enactments are carefully examined.it will be found, that no one of them contains anything^ inconsistent in principle with the views here expressed. Gold, at the time the act establishing the mint became. ,a law, was valued 15 to 1 as compared with silver, but the disparity in value gradually increased, and to such an extent that the gold coius began to disappear from circulation, and. to remedy that evil Congress found it necessary to augment the relative proportion of alloy by diminishing the required amount of gold, whether pure or standard.. Eagles coined under that act were required to contain each 232 grains of pure gold, or 258,grains of standard gold.
Double eagles and gold dollars were authorized to be “struck and coined” at the mint, by the act of March 3d, 1849, but the standard established for other gold coins was not changed, and the provision was that the hew coins should also be legal tender for their coined value.
Fractional silver coins were somewhat reduced in value by the act of February 21st, 1853, but the same act provided to the effect that the silver coins issued in conformity thereto should not be a legal tender for any sum exceeding five dollars, showing that the. purpose of the enactment was to prevent the fractional coins, so essential for daily use, from being hoarded or otherwise withdrawn from circulation.
Suppose it be conceded, however, that the effect of that act was slightly to debase the fractional silver coins struck . and coined under it, still it is quite clear that the amount was too inconsiderable td> furnish any solid argument against the proposition that the standard of value in the United States was fixed by the Constitution, and that such was the. understanding, both of the government and of the people of the United States, for a period of mоre than seventy years from the time the Constitution was adopted and put in successful operation under the laws of Congress. Throughout that period the value of the money unit was never diminished, and it remains to-day, in respect to value, what it was when it was defined in the act establishing the mint, and it is safe to affirm that no one of the changes made in the other coins, .except perhaps the fractional silver coins, ever extended one whit beyond the appropriate limit of constitutional regulation.
Treasury notes, called United States notes, were authorized to be issued by the act of February 25th, 1862, to the amount of $150,000,000, on the credit of the United States, but. they were not to bear interest, and were to be made
Strictly examined it is doubtful whether either of the cases before the' court present any such questions as those which have been discussed in the opinion of the majority of the court just read; but suppose'they do, which is not admitted, it then becomes necessary to inquire in the first place whether those questions am not closed by the recorded decisions of this court. Two questions are examined in the opinion of the majority of the court: (1.) Whether the legal tender acts are constitutional as to contracts made before the acts were passed. (2.) Whether they are valid if applied to contracts made since their passage.
Assume that the views here expressed are correct, and it matters not whether the contract was made before or after the act of Congress was passed, as it necessarily follows that Congress cannot, under any circumstances, make paper promises, of any kind, a legal tender in payment of debts. Prior to the decision just pronounced it is conceded that the second question presented in the record was never determined by this- court, except as it is involved in the first question, but it is admitted by the majority of the court that the first question, that is the question whether the acts under consideration are constitutional as to contracts made before their passage, was fully presented in the case of Hepburn v.
' Admitted or not, it is as clear as anything in legal decision can be that the judgment of the court in that case controls the first question presented in the cases before the court, unless it be held that the judgment in that ease was given for the wrong party and that the opinion given by the Chief Justice ought to.be overruled.
Attempt is made to show that the second question is an open one, but the two, in my judgment, involve the’same considerations, as Congress possesses no other power upon the subject- than that which is derived from the grant to coin money, regulate the value thereof and of foreign coin. By that remark it is not meant to deny the proposition that Congress in executing the express grants may not pass all laws which shall be necessary and proper for carrying the same into execution, as provided in another clause of the same section of the Constitution. Much consideration of that topic is not required, as the discussion was pretty nearly exhausted by the Chief Justice in the case of Hepburn v. Griswold
Credit, currency, whether issued by the States or the United States, or by private corporations or. individuals, is not'recognized by the Constitution as a staudard of value, nor'can it be made such by any law which Congress or the. ' States can pass, asthe laws of trade are stronger than any -legislative enactment. Commerce requires a standard of value, and all experience warrants the prediction that commerce will have it, whether the United States .agree or disagree; as the laws of commerce in that respect are stronger' than the laws of any single nation of the commercial world.
Unrestricted, power “to-ñxthe standard of weights and measures! is vested in Cougress, but until recently Congress had n5t enacted any general regulations in execution of that power.
Power to coin money and regulate the value of domestic and foreign coin was vested in the national government to produce uniformity of value and to prevent the embarrassments of a perpetually fluctuating and variable currency.
Money, says the same commentator, is the universal medium or common standard by a comparison with which the value of all merchandise may be ascertained; and he also speaks" of it as “ a sigh which represents the respective values of all other commodities.’
Interests of such magnitude and pervading importance as those involved in providing for a uniform standard of value throughout the Union were manifestly entitled to the protection of the national authority, and in .view of the evils, experienced for the want of such a standard during the war of the Revolution, when the country ivas inundated with floods of depreciated paper, the members of the Convention who.framed the Constitution did not hesitate to confide the power to Congress not only to coin money and regulate the value thereof, but also the power to regulate the value of foreign coin, which was denied to the Congress of the Confederation.
Influenced by these considerations and others expressed
But where the parties are different, it is said the court, in a subsequent case, may overrule a former decision, and it must be admitted that the proposition, in a technical point of view, is correct. Such examples are to be found in the reported decisions of the court, but they are not numerous, and it seems clear that the number ought never to be increased, especially in a matter of so much importance, unless the error is plain and upon the clearest convictions of judicial duty.
Judgment was rendered for the plaintiff in that case on the 17th of September, 1864^ in the highest court of the State, and on the 23d of June in the succeeding year the defendants sued out a writ of error, and removed the cause into this court for re-examination.
All writers upon political economy agree that money is .the universal standard of value, and the measure of exchange,' foreign and domestic, and that the power to coin and regulate the value of money is an essential attribute of national sovereignty. Goods and chattels were directly bar
Evidence of the truth of these remarks, of the most convincing character, is to be found in the published proceedings of that Convention. Debate upon the subject first arose when an amendment was proposed to prohibit the States
Contemporaneous acts are certainly evidence of intention, and if so, it is difficult to see what more is needed to show that the members of that Convention intended to withhold from the States, and from the United States, all power to make anything hut gold and silver a standard of value, or a tender in .payment of debts.' Equally decisive proof to the same effect is found in the debates which subsequently occurred in the conventions of the several States, to which the Constitution, as adopted, was submitted for ratification.
Currency is a word much more comprehensive than the word money, as it may include bank b.ills and even bills of exchange as well as coins of gold and silver, but the word money, as employed in the grant of power under consideration, means the coins of gold and silver, fabricated and stamped as required by law, which, by virtue of their intrinsic value, as universally acknowledged, and their official origin, become the medium of exchange and the standard
■ Like support is also derived from the language of Mr. Hamilton in his celebrated report recommending the incorporation of a national bank. He first states the objection to •the proposed measure, that banks tend to banish the gold and silver of the country; and secondly he gives the answer to that objection made by the advocates of the bank, that it is immaterial what serves the purpose of money, and then says that the answer is not entirely satisfactory, as the permanent increase or decrease of the precious metals in a country can hardly ever be a matter of indifference. “As the commodity taken in lieu of every other, it (coin) is a species of the most effective wealth, and as the money of the world it is of great concern to-the state that it possesses a sufficiency of it to face any demands which the prоtection of its external interests may create.” lie favored the incorporation of a national bank, with power to issue bills and notes payable on demand in gold and silver,.but he expressed himself as utterly opposed to paper emissions by the United States, characterizing them as so liable to abuse and even so certain of being abused that the government ought never to trust itself “with the use of so seducing and dangerous an element.”t Opposed as he was to paper emissions by the United States, under any circumstances, it is past belief that he could ever- have concurred in the proposition to make
Financial embarrassments, second only in their disastrous-consequences to those which preceded the adoption of the Constitution, arose towards the. close of the last war with* Great Britain, and it is matter of history that those embarrassments were too great and pervading to be overcome-by the use of treasury notes or any other paper emissions-without a specie basis. Expedients of various kinds were-suggested, but it never occurred, either to the executive or-to Congress that a remedy could be found by making treasury notes, as then authorized, a legal tender, and the result •was that the second Bank of the United States was incorporated.
Serious attempt is made, strange to say, to fortify the proposition that the acts in question are constitutional from the fact that Congress, in providing for the use of treasury notes, and in granting the charters to the respective national banks, made the notes and bills receivable in payment of duties and taxes, but the answer to the suggestion is so obvious that it is hardly necessary to pause to suggest its refutation.
Resort wap also had to treasury notes in the revulsion of 1837, and during the war with Mexico, and also in the great revulsion of 1857, but the new theory that Congress could make treasury notes á legal tender was not even suggested, either by the President or by any member of Congress.‡
Seventy years are included in this review, even if the .computation is only carried back to the passage of the act establishing the mint, and it is clear that there is no trace of any act, executive or legislative, within that period, which affords the slightest support to the new constitutional theory that Congress can by law constitute paper emissions a tender in payment of debts. Even Washington, the father of our country, refused to accept paper money in payment of debts, contracted before the War of Independence, and the proof
Sufficient also is recorded in the reports of the decisions of this court to show that the court,'from the organization of the judicial system to the day when the judgments in the cases before the court were . announced,
Definitions slightly different have been given by different jurists to the words “ necessaiy aud proper,” employed in • the clause of the Constitution conferring upon Congress the power to pass laws for carrying the express grants of power into execution, but no one ever pretended that a construction or definition could be sustained that the general clause would authorize the employment of such means in the execution of one express grant as would practically
Substantially the same definition was adopted by the present Chief Justice in the former case, in which he gave, the opinion of the court, and there is nothing contained in the Federal reports giving the slightest sanction to any broader definition of those words.. Take the definition given by Mr. Hamilton, which, perhaps, is the broadest, if there is any difference, and still it is obvious that it would give no countenance whatever to the theory that Congress, in passing a law to execute' one express grant of the Constitution, could authorize means which would nullify another express grant, or render it nugatory for the attainment of the end which the framers of the Constitution intended it should accomplish.
Authority to coin money was vested in Congresá to provide a permanent national standard of valué, everywhere the same, and subject to no variation except what Congress shall make under the power to regulate the value thereof, and it is not possible to affirm, with any hope that the utterance will avail in the argument, that the power to coin money is not an express power, and if those premises are
Government notes, it is conceded, may be issued as a means of borrowing money, because the act of issuing the notes may be, and often is, a requisite means to execute the granted power, and being fairly applicable to the attainment of the end, the notes, as means, may be employed, as they are not precluded by any restrictions or exceptions, and are not repugnant to any other express grant contained in the .Constitution. Light-houses, buoys, and beacons may be erected under the power to regulate commerce, but Congress cannot authorize an officer of the government to take private property for such a purpose without just compensation, as the exercise of such a power would be repugnant to the fifth amendment. Power to lay and collect taxes is conferred upon Congress, but the Congress cannot tax the salaries of the State judges, as the exercise of such a power is incompatible with the admitted power of the States to create courts, appoint judges, and provide tor their compensation.
Congress may also impose duties, imposts, and excises to pay the debts and provide for the common defence and general welfare, but the Congress canuot lay any tax or duty on articles exported from any State, nor can Congress give any preference by any regulation of commerce or revenue to the ports of one State over those of another, as the exercise of any such power is prohibited by the Constitution. Exclusive power.is vested in Congress to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Appropriations to execute those powers m'ay be made by Congress, but no appropriations of money to that use can be made for a longer term than two years, as an appropriation .for a longer term is expressly
Legislative power under the Constitution can never be rightfully extended to the exercise of a powrer not granted nor to that which is prohibited, and it makes no difference whether the prohibition is express or implied, as an implied 'prohibition, when once ascertained, is as effectual to negative the right to legislate as one that is expressed; the rule being that Congress, in passing laws to carry the express powers granted into execution, cannot select any means as requisite for that purpose or as fairly applicable to the attainment of the ehd, which are precluded by restrictions or exceptions contained in the Constitution, or which are contrary to the essential ends of political society.
Concede these premises, and it follows that the acts of Congress in question cannot be regarded as valid unless it can be held that the power to make paper emissions a legal tender in payment of debts can properly be'implied from the power-to coin money, and that such emissions, when enforced by such a provision, become the legal standard of value under the Constitution. Extended discussion of the first branch of the proposition would seem to be unnecessary, as the dissenting justices in the former case' abandoned that point and frankly stated in the dissenting opinion .delivered that they were not able to see in those clauses, “ standing alone, a sufficient warrant for the exercise of this power.” Through their organ on the occasion they referred to the power to declare Avar, tо suppress insurrection, to
Suggestions or intimations are made in one or more of the.opinions given in the State courts that the power assumed by Congress may be vindicated as properly implied from the power to coin money, but inasmuch as that assumption was not the ground of the dissent in the former case, and as the court is not referred to any case where a court affirming the validity of the acts of Congress in question has ventured to rest their decision upon, that theory, it does, not appear to be necessary to protract the discussion upon that point.
Such notes are not declared in the acts of Congress to be a standard of value, and if they were the provision would be as powerless to impart that quality to the notes as were the processes of the alchemist to convert chalk into gold, or the contrivances of the mechanic to organize a machine and give it perpetual motion. Gold and silver were adopted as the standard of value, even before civil governments were organized, and they have always been regarded as such to the present time, and it is safe to affirm that they will continue to be such by universal consent, in spite of legislative enactments and of judicial decisions. Treasury notes, or the notes in question, called by what name they may be, never
■“Most unquestionably,” said Mr. Webster,
Views equally decisive have been expressed by this court in a case where the remarks were pertinent to the question presented for decision.
Equally decisive views were expressed by the court six years earlier, in the case of Gwin v. Breedlove
No State shall coin money, emit bills of credit, or make anything but gold and silver a tender in payment of debt.s. These prohibitions, said Mr. Justice Washington,
Strong support to the view here taken is also derived from the case of Craig v. Missouri, last cited, in which the opinion was given by the Chief Justice. Loan certificates issued by the State were the consideration of the note in suit in that case, and the defence was that the certificates were bills of credit and that the consideration of the note was illegal. Responsive to that defence the plaintiff insisted that the certificates were not bills of credit, because they had not been made a legal tender, to which the court replied, that the emission of bills of credit and the enactment of tender laws were distinct operations, independent of each other; that both were forbidden by the Constitution; that the evils of paper money did not result solely from the quality of its being made a tender in payment of debts; that that quality might be the most pernicious one, but that it was not an essential quality of bills of credit nor the only mischief resulting from such emissions.
Remarks of the Chief Justice in the case of Sturges v. Crowninshield
Utterances of the kind are found throughout the reported decisions of this court, but there is not a- sentence or word to be found within those volumes, from the organization of the court to the passage of the acts of Congress in question, to support the opposite theorv.
Power, as Defore remarked, was vested in the Congress under the Confederation to borrow money and emit bills of credit, and. history shows that the power to emit such bills had been exercised^ before the Convention which framed the Constitution assembled, to an amount exceeding $350,000,000.
More forcible vindication of the action of the Convention could hardly be made than is expressed in the language of the Federalist^ and the authority of Judge Story warrants the statement that the language there employed is “justified by almost every contemporary writer,” and is “attested in its truth by facts” beyond the influence of every attempt at contradiction. Having advеrted to those facts the commentator proceeds to say, “ that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to. substitute a paper medium instead of coin.”
Emissions of the kind wTere not declared by the Continental Congress to be a legal tender, but Congress passed a resolution declaring that they ought to be a tender in payment of all private and public debts, and that a refusal to
Bills of credit were made a tender by the States, but all such, as well as those issued by the Congress, were dead in the hands of their possessors before the Convention assembled to frame the Constitution. Intelligent and impartial belief in the theory that such men, so instructed, in framing a government for their posterity as well as for themselves, would deliberately vest such .a power, either in Congress or the States, as a part of their perpetual system, can never iti my judgment be secured in the face of the recorded evidences to the contrary which the political and judicial history of our country affords. Such evidence, so persuasive and convincing as it is, must ultimately bring all to the conclusion that neither the Congress nor the States can make anything but gold or silver coin a tender in payment of debts.
Exclusive power to coin money is certainly vested in Congress, but “ no amount of reasoning can show that executing, a promissory note and ordering it to be taken in pay
Complete refutation of such theory is also found in the dissenting opinion in the former ease, in which the justice who delivered the opinion states that he is not able to deduce the power to pass the laws in question from that clause of the Constitution, and in which he admits, without qualification, that the provision making such notes a legal tender does undoubtedly impair the “ obligation of contracts made before its passage.” Extended argument, therefore, to show that the acts in question- impair the obligation of contracts made before their passage is unnecessary, but the admission stops short of the whole truth, as it leaves the implication to be drawn that the obligation of subsequent contracts-is not impaired by such legislation. Contracts for the payment of money, whether made before or after, the passage of such a provision, are contracts, if the promise is expressed in dollars, to pay the specified amount in the money recog nized aud established by the Constitution as the standard 01 value, and any act of Congress which iii theory compels the creditor to accept paper emissions, instead of the money so recognized and established, impairs the obligation of such a contract, no matter whether the contract was made before or after the act compelling the creditor to accept- such payment, as the Constitution in that respect is a part of the contract, and by its terms entitles the creditor to demand payment in the medium which the Constitution recognizes and establishes as the standard of value.
Evidently the word dollar, as employed in the Constitution-, means the money recognized and established in the express power vested in Congress to coin money, regulate the value thereof and of foreign coin, the framers of the Constitution having borrowed and adopted the word as used by the Continental Congress in the ordinance of the 6th of July, 1785, and of the 8th August, 1786, in which it was Biiacted that the money unit of the United States should be
Repeated decisions of this court, of recent date,
When the intent of the parties as to the medium of payment is clearly expressed in a contract, the court decide, in Butler v. Horwitz, above cited, that damages for the breach of it, whether made before or since the enactment of these laws, may be properly assessed so as to give effect to that iutent, and no doubt is entertained that that rule is correct. Parties may contract to accept payment in treasury notes, or specific articles, or in bank bills, and if they do so they are bound to aecejDt the medium for which they contracted, provided the notes, specific articles, or bills arc tendered on the day the payment under the contract becomes due, and it is clear that such a tender, if seasonable aud sufficient in
Grant all that, and still it is clear that where the contract is for the payment of a certain sum of monoy, and the promise is expressed in dollars, or in coined dollars, the promisee, if he sees fit, may lawfully refuse to accept payment in any other medium than gold and silver, made a legal tender by act of Congress passed in pursuance of that provision of the Constitution which vests in Congress the power to coin money, regulate the value thereof and of foreign coin.
Foreign coin of gold and silver may bo made a legal tender, as the power to regulate the value thereof is vested in Congress as well as the power to regulate the value of the coius fabricated and stamped at the mint.
Opposed, as the new theory is by such a body of evidence, covering the whole period of our constitutional history, all tending to the opposite conclusion, and unsupported as the theory is by a single historical fact, entitled to any weight, it would seem that the advocates of the theory ought to bo able to give it a fixed domicile' in the Constitution, or else be willing to.abandon it as a theory without any solid constitutional foundation. Yagraney in that behalf, if conceded, is certainly a very strong argument at this day, that the power does not reside in the Constitution at all, as if the fact were otherwise, the period of eighty-five years which has elapsed since the Constitution was adopted is surely long enough to have enabled its advocates to discover its locality and to be able to point out its home to those whose researches have been less successful and whoso conscientious
- Unless the power to enact such a provision can be referred to some one or more of the express grauts of power to Congress, as the requisite means, or as necessary and proper for carrying such express power or powers into execution, it is usually conceded that the provision must be regarded as unconstitutional, as it is not pretended that the Constitution contains any express grant of power authorizing such legislation. Powers not granted cannot be exercised by Congress, and certainly all must agree that no powers are granted except what are expressed or such as are fairly applicable as requisite means to attain the end of a power which is granted, oy, in other words, are necessary and proper to cany those yhioh are expressed into execution.* Pressed by these irropealable rules of construction, as applied, to the Constitution, those who maintain the affirmative of the question under discussion are forced to submit a specification. Courts in one or more cases have intimated that the power in question may be implied from the express power to coin money, but inasmuch as no decided case is -referred to whore the judgment of the court rests upon that ground, the suggestion will be dismissed without further cpnsideration, as one involving a proposition too latitudinons to require refutation. Most of the cases referred to attempt to deduce the power to make such paper emissions a legal tender from the express power to borrow money, or from the power to declare war, or from the two combined, as in the dissenting opinion in the case which is now overruled.
' Authority, it is conceded, exists in Congress to pass laws providing for the issue of treasury notes, based on the national credit, as necessary and proper means for fulfilling the end of the express power to borrow money, nor can it be doubted at this day, that such notes, when issued by the
Loans had been previously authorized iu repeated instances, as will be seen by the following references, to which many more might be added.
Guided by the views expressed in the dissenting opinion in the former case it must be taken for granted that the ■ legal tender feature in the acts in question was placed emphatically, by those, who enacted the provision, upon the necessity of the measure to the further borrowing of money and maintaining the army and navy, and such appears to be the principal ground assumed in the present opinion of the ■court. Enough also appears in some of the interrogative sentences of the dissenting opinion to show that the learned justice who delivered it intended to place the dissent very largely upon the same ground.
Nothing need be added, it would seem, to show that the power to make such notes a standard of value and a legal tender caunot beclerived from the power to borrow money, without so-expanding it by implication as to nullify the power to coin money and regulate its value, nor without extending the scope and operation of the power to borrow money to an object never contemplated by the framers of the Constitution; and if so, then it only remains to iuqnire whether it may be implied from the power to declare war,' to raise and support armies; or to provide and maintain a navy, or “to enable the government to borrow money to carry on the war,” as the phrase is in the dissenting opinion in the former case.
Money is undoubtedly the sinews of war, but the power to raise money to carry oíú-war, under the Constitution, is not an implied power, and whoever adopts that theory commits a great constitutional error. - Congress may declare war aud Congress may appropriate all moneys.iu.the' treas
Weighed in the light of those suggestions, as the question under discussion should be, it is plain, not only that the exercise of such an implied power is unnecessary to supply the sinews of -war, but that the framers of the Constitution never intended to trust a matte'- of such great and vital importance as that of raising means for the national defence or for the prosecution of a war to any implication whatever, as they had learned from bitter experience that the great weakness of the Confederation during the war for independence consisted in the want of such express powers. Influenced by those considerations the framers of the Constitution not only authorized Congress to lay and collect taxes, duties,
Comprehensive?, however, as the power of Federal taxation is, being without limitation as to amount, still there are some restrictions as to the manner of its exercise, and some exceptions as to the objects to which it may be applied. Bills for. raising revenue must originate in the House of Kepresentatives; duties, imposts, and excises -must be uniform throughout the United States; direct taxes must be .apportioned according to numbers; regulations of commerce and revenue shall not give any preference to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another; nor shall any tax or duty be laid on articles exported from any State.
Preparation for war may be made in peace, but neither the necessity for such preparation nor the actual existence of-war can have the effect to abrogate or supersede those restrictions, or to empower Congress to tax the articles excepted from taxation by the Constitution. Implied exceptions also exist, limiting the power of Federal taxation as well as that of the States.,, and when an exception- of that character.is ascertained the objects falling within it are as effectually shielded from taxation as those falling within an express.exception, for the plain reason that the “ government of the United States is acknowledged by all to be one of enumerated powers,” from which it necessarily follows that powers not granted cannot.be exercised.
Moneys may be raised by taxes, duties, imposts, and excises to carry on war as well as to pay the public debt or to provide for the common defence and general welfare, but no appropriation of money to’ that use can be made for á
Congress may also borrow money to carry on war, without limitation, and in exercising that_express power may issue treasury notes as the requisite means for carrying the express power into execution, but Congress cannot constitute such notes a standard of value nor make them a legal tender, neither in titae of war nor in time of peace, for at least two reasons, either of which is conclusive that the exercise of such a power is not warranted by the Constitution : (1) Because the published proceedings of the Convention which adopted the Constitution, and of the State conventions which ratified it, show that those who participated in those deliberations ncveif intended to confer any such power. (2) Because such a powbr, if admitted to exist, would nullify the" effect and operation of the express power to coin money, regulate the value thereof and of foreign coin; as it would substitute a paper medium in fiie place of gold and silver coin, which in itself, as compared with coin, possesses no value, is not money, either in the constitutional or commercial sense, but only a promise to pay money, is never worth par, and.often much less, even as domestic exchange, and is always fluctuating and never acknowledged either as a medium of exchange or a standard of value iu any foreign market known to American commerce.
Power to issue such notes, it is conceded, exists without limitation, but the question is whether the framers of the Constitution intended that Congress, in the exercise of that power or the power'to borrow money, whether in peace or war, should be empowered to constitute paper emissions, of any kind, a standard of'value, and make the same a legal
Constitutional powers, of the kind last mentioned — that is, the power to ordain a standard of value and to provide a circulating medium for a legal tender — are subject to no mutations of any kind. They are the same in peace and in war. What the grants of power meant when the Constitution was adopted and ratified they mean still, and their meaning can never be changed except as described in the fifth article providing for amendments, as the Constitution “ is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men and under all circumstances.”
Delegated power ought never to be enlarged beyond the fair scope of its terms, and that rule is emphatically applicable. in the construction of the Constitution. Restrictions may at times be inconvenient, or even embarrassing, but the power to remove the difficulty by amendment is vested in the people, and if they do not exercise it the presumption is that the inconvenience is a less evil than the mischief to be apprehended if the restriction should be removed and the power extended, or that the existing inconvenience is the least of the two evils; and it should never be forgotten that the government ordained and established by the Constitution is a government “ of limited and enumerated powers,” and that to depart from the true import and meaning of those powers is to establish a new Constitution or to do for the people what they have not choseu to do for themselves, and to usurp the functions of a legislator and desert those of an expounder of the law., Arguments drawu from impolicy or inconvenience, says Judge Story, ought here to be of no weight, as “the only sound principle is to declare ita lex scripta est, to follow and to obey.”
Walker’s Science of Wealth, 124; Liverpool on Coins, 8.
7 Jefferson’s Works, 462.
Constitution, art. 8, clause 5.
Huskisson on Depreciation of Currency. 22 Financial Pamphlets, 579.
1 Laws of the U. S., 1st ed., 640 ; 1 Curtis’s History of the Constitution, 443; 10 Journals of Congress (Dunlap’s ed.), 225; 1 Life of Gouverneur Morris, 273; 11 Journals of Congress, 179.
1 Stat. at Large, 24; Ib. 29.
Ib. 65.
1 Laws of the U. S. 647; 10 Journals of Congress, 225; 11 Id. 254; 8 Stat. at Large, 80.
1 Stat. at Large, 248, 250.
7 Journals of Congress, 286.
13 Hening’s Statutes (Va.), 478; Laws of New Hampshire, 240.
2 Laws of Massachusetts, 657 ; Rеvised Laws of Rhode Island, p. 319; 5 Statutes of South Carolina, 262.
M. & C. Dig. (Ga.), 33; 3 Laws of New York, Greeln. ed. 363.
4 Stat. at Large, 699.
5 Stat. at Large, 137.
9 Id. 397.
10 Id. 160
12 Stat. at Large, 345.
Hepburn v. Griswold, 8 Wallace, 618; 12 Stat. at Large, 370, 532, 710, 822.
8 Wallace, 614, 625.
7 Jefferson’s Works, 472; 22 Financial Pamphlets, 417; Horner’s Bullion Report.
McCullock, Commercial Dictionary, edition of 1869, 380.
2 Bouvier’s Law Dictionary; 648; 7 Jefferson’s Works, 472; Jefferon’s Correspondence, 133.
4 Stat. at Large, 278; 5 Id. 133; 14 Id. 339.
2 Story on the Constitution (3d ed.), § 1122; Kawle on the Constitution, 102; Cooley on Constitutional Limitations, 596; Pomeroy on the.Constitution, 263.
2 Story on the Constitution, g 1122.
2 Story on the Constitution, § 1118.
Mill, Political iiconomy,"294.
2 Phillips’s Paper Currency, 135; 9 Jefferson’s Works, 254, 289; 6 Sparks, Washington’s Letters, 321.
Sibbald v. United States,
Griswold v. Hepburn, 2 Duvall, 20.
14 Stat. at Large, 209.
16 Id. 44.
Walker's Science of Wealth, 127.
1 Smith’s Wealth of Nations, 35.
McCullock’s Commercial Dictionary (ed. 1869), 894; Mill’s Political Economy, 294; 7 Jefferson’s Works, 490.
3 Madison Papers, 1442.
3 Madison Papers, 1344; 5 Elliott’s Debates, 434, 485.
2 Curtis’s History of the "Constitution, 364.
1 Elliott’s Debates, 492; 2 Id. 486; 4 Id. 184; Ib. 334, 336; 3 Id. 290, 472, 478; 1 Id. 369, 370.
1 Id. 376.
federalist, No. 44; Ibid. No. 42.
Hist, of the Bank of the United States, 21, 24, 32.
2 Stat at Large, 766; 3 Id 100.
3 Id. 315.
Ib. 266.
Metropolitan Bank v. Van Dyck, 27 New York, 42.
4 Webster’s Works, 271; Thorndike v. United States,
5 Stat. at Large, 201; Ib. 469; 9 Id. 118; 11 Id. 257.
2 Phillips’s Paper Currency, 135; 6 Sparks’s Letters of Washington, 321.
Legal Tender Cases, 11 Wallace, 682.
History of the Bank of the United States, 95.
McCulloch v. Maryland,
Collector v. Day, 11 Wallace, 113; Ward v. Maryland, 12 Id. 418.
History of tlie Bank of the United States, 95.
Hepburn v. Griswold, 8 Wallace, C08.
22 Financial Pamphlets, 580.
4 Webster’s Works, 271.
4 Id. 280.
United States v. Marigold,
Ogden v. Saunders,
Ib. 288.
United States v. Marigold,
Briscoe v. Bank of Kentucky,
Sturges v. Crowninshield, 4 Wheaton, 205.
2 Story on the Constitution, 3d ed. 249; Briscoe v. Bank of Kentucky,
1 Elliott’s Debates, 369.
Federalist, No. 44.
2 Journals of Congress, 21; 3 Id. 20; 2 Pitkin’s History, 155-6.'
2 Story on the Constitution, 3d ed., §§ 1359, 1360; 2 Pitkin’s History, 57; 1 Jefferson’s Correspondence, 402.
Pomeroy on the Constitution, § 409.
1.0 Journals of Congress, 225; 11 Id. 179.
Bronson v Rodes, 7 Wallace, 248; Butler v. Horwitz, Ib. 259; Bank v. Supervisors, Ib. 28.
Dewing v. Sears, 11 Id. 379; Lane Co. v. Oregon, 7 Id. 73; Willard v Tayloe, 8 Id. 568.
Bank of the United States v. Bank of Georgia,
Martin v. Hunter’s Lessee,
1 Stat. at Large, 139.
2 Stat at Large, 766
. 1 Id 142; Ib. 187; Ib. 345; Ib. 433; Ib. 607, 2 Id. 60; Ib. 245; Ib. 349; Ib. 610; Ib. 656; Ib. 694.
5 Id. 202; 9 Id. 64; 4 Id, 7G5; 2 Id. 766; Ib. 801; 3 Id. 161; Ib. 213, 5 Id. 201; Ib. 228 ; Ib. 328 ; Ib. 469 ; Ib. 474; Ib. 581; Ib. 614; 9 Id. 39; Ib. 118; 11 Id. 257; 12 Id. 121; Ib. 179; Ib. 259; Ib. 313; Ib. 338.
McCulloch v. Maryland; 4 Wheaton, 405.
Ex parte Milligan, 4 Wallace, 120.
1 Story on the Constitution, 3d ed., § 426.
Dissenting Opinion
dissenting:
Whilst I agree with the Chief Justice in the views expressed in- his opinion in these cases, the great importance which I attach to the question of legal tender induces me to present some further considerations on the subject.
Nothing has beeu heard from counsel in these cases, and nothing from the present majority of the court, which has created a'doubt in my mind of the correctness of the judgment'rendered in the case of Hepburn v. Griswold
The questions presented in that case were also iuvolved in several other cases, and had been elaborately argued in them. It is not extravagant to say that no case has ever been decided by this court since its organization, in which the questions presented were more fully argued or more maturely considered. It was hoped that a judgment thus reached would not be lightly disturbed. It was hoped that it had settled forever that under a Constitution ordained, among other things, “to establish justice,” legislation giving to one person the right to discharge his obligations to another by nominal instead of actual fulfilment, could never be justified.
I shall not comment upon the causes which have led to a reversal of that judgment.. They are patent to every one. .1 will simply observe that the Chief Justice and the associate justices, who constituted the majority of the court when that judgment was rendered, still adhere to their former convictions. To them the reasons for the original decision are as cogent and convincing now as they were when that
In the cases now before us the questions stated, by order of the court, for the argument of counsel, do not present with entire accuracy the questions actually argued and decided. As stated, the questions tire: 1st. Is the act of Congress, known as the legal tender act, constitutional as to contracts made before its passage? 2d. Is it valid as applicable to transactions since its passage?
The act thus designated as the legal tender act is the act of Congress of February 25th, 1862, authorizing the issue of United States notes, and providing for their redemption or funding, and for funding the floating debt of the United States;
No question Was raised as to the validity of the provisions of the act authorizing the issue of the notes, and making • thorn receivable for dues to the^United States; nor do I perceive that any objection could justly be made at this day to these -provisions. The issue of the notes was a proper exercise of the power to borrow money, which is granted to Congress without limitation. The extent to which the ’ power may be exercised depends, in all eases, upon the judgment of that body as to the necessities of the government. The power to borrow includes'the power to give evidences of indebtedness and obligations of repayment.
In June, 1812, Congress passed an act which provided for the issue of treasury notes, and authorized the Secretary of the Treasury, with the approbation of the President, “to borrow from time to time, not under par, such stuns ” as the President might think expedient, “ on the credit of such notes.”
In February, 1813, Congress passed another act for the issue of treasury notes, declaring “ that the amount of money borrowed or obtained by virtue of the notes” issued under its second section should be a part of the money authorized to be borrowed under a previous act of the same session.
The issue of the notes for supplies purchased or services rendered at the request of the United States is only giving their obligations for an indebtedness thus incurred ; and the same power which authorizes the issue of notes for money must also authorize their issue for whatever is received as an equivalent for money. The result to the United States is the same as if the money were actually received for the notes and then paid out for the supplies or services.
The notes issued under the act of Congress of February 25th, 1862, differ from the treasury notes authorized by the previous acts t'o which I have referred, in the fact that they do not bear interest and do not designate on their face a period at which they shall be paid, features which may affect their value in the market but do not change their essential character. There cannot be, therefore, as already stated, any just objection at this day to the issue of th.e notes,t nor to their adaptation in form for general circulation.
Nor can there be any objection to their being made receivable for dues to the United States. Their receivability in this respect is only the application to the demands of the government, and demands against it, of the just principle which is applied to the demands of individuals against each other, that cross-demands shall offset and satisfy each other to the extent of their respective amounts. No rights of third parties are in any respect affected by the application of the rule here, and the purchasing and borrowing power
In considering the validity and constitutionality of this provision, I shall in the first place confine myself to the provision in its application to private debts. Afterwards I shall have something to say of the provision in its application to debts owing by the government.
In the discussions upon the subject of legal tender the advocates of the measure do not agree as to the power in the Constitution to which it shall be referred; some placing it upon the power to borrow'money, some on the coining power, and some on what is termed a resulting power from the general purposes of the government; and these discussions have been accompanied by statements as to the effect of the measure, and the consequences which must have followed had it been rejected, and which will now occur if its validity bo not sustained, which rest upon no solid foundation, and are not calculated to aid the judgment in coming to a just conclusion.
In what I have to say I shall endeavor to avoid any such general and loose statements, and shall direct myself to an inquiry into the nature of these powers to which the measure is referred, and the relation of the measure to them.
Now if Congress can, by its legislative declaration, make the notes of the United States a legal tender in payment of private debts — that is, can make them receivable against the will of the creditor in satisfaction of debts due to him by third parties — its power in this respect is not derived from its power to borrow money, under which the notes were issued. That po\ver is not different in its nature or essential incidents from the power to borrow possessed by individuals, and is not to receive a larger definition. Nor is it different from the power often granted to public and private corporations. The grant, it is true, is usually accompanied in these
As an inducement to the loan, and security for its repayment, the borrower may of course pledge such property or revenues, and annex to his promises such rights and privileges as he- may possess. His stipulations in this respect are necessarily limited to his own property, rights, and privileges, and cannot extend to th'ose of other persons.
Now, whether a borrower — be the borrower an individual, a corporation, or the .government — can annex to the bonds, notes, or other evidences of debt given for the money borrowed, any quality by which they will serve as a means of satisfying the contracts of other parties, must necessarily depend upon the question whether the borrower possesses any right to interfere with such contracts, and determine how they shall be satisfied. The right of the borrower in this respect rests upon no different foundation than the right to interfere with any other property of third parties. And if it will not be contended, as I think I may assume it will not be, that the borrower possesses any right, in order to make a loan, to interfere with the tangible and visible property of
That an individual or a corporation .borrowing possesses no power to annex to his evidences of indebtedness аny quality by w'hich.the holder will be enabled to change his contracts with third parties, strangers to the loan, is admitted ; but it is contended that Congress possesses such power because, in addition to the express pp-wer to borrow money, there is a clause in the Constitution which authorizes Congress to make all laws “ necessary.and proper” for the execution of the powers enumerated.- This clause neither augments nor diminishes the expressly designated powers. It only states in terms what Congress w'ould equally have had the right to do without its insertion in the Constitution. It is a geqeral principle that a power to do a particular act includes the power to adopt all the ordinary and appropriate, means for its execution. “Had the Constitution,” says Hamilton, in the Federalist, speaking of this clause, “ been silent on this head, there c'an be no doubt that all the particular powers requisite as a means oCexecuting the general powers wou]d have resulted to the government by-unavoidable implication. No axiom is more clearly established i-n law or in reason, that whenever the end is required the means are authorized; whenever a general power to do a thing is given, every particular power necessary for doing it is included.”
The subsidiary power existing without the clause in question, its insertion in the Constitution was no doubt intended, as observed by Mr. Hamilton, to prevent “all cavilling refinements” in those wdio might thereafter feel a disposition
But though the subsidiary power would have. existed withopt this clause, there would have been the same perpetually recurring question as now, as to what laws are necessary'and proper for the execution of the expressly enumerated powers.
The particular clause in question has at different times, undergone elaborate discussion in Congress, in cabinets, and in the courts. Its meaning was much debated in the first Congress ujpon the proposition to incorporate a national bank, and afterwards in the cabinet of Washington, when that measure was presented for his approval. Mr. Jefferson, then Secretary of State, and Mr. Hamilton, then Secretary of the Treasury, differed widely in their construction of ’the clause, and each gave his views in an elaborate opinion. Mr. Jefferson held that the word “ necessary ” restricted the power of Congress to the use of those means, without which the grant would be nugatory, thus making necessary equivalent to indispensable.
Mr. Hamilton favored a more liberal, and in my judgment,, .a more just .interpretation, and. contended that the terms- “ necessary and proper ” meant no more than that the measures adopted must have an obvious relation as a means to-the end intended. “ If the end,” he said, “ be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.” “ There is also,” he added, “ this further criterion which may materially assist the decision. Does the proposed measure abridge a pre-existing right of any State, or of any individual ? If it does not, there is a strong presumption in favor of its constitutionality; and slighter relations to any declared object may be permitted to turn the scale.” From the criterion thus indicated it;
The interpretation given by Mr. Hamilton was substantially followed by Chief Justice Marshall, in McCulloch v. The State of Maryland, when, speaking for the court, he said that if the end to be accomplished by the legislation of Con-' gress be legitimate, and within the scope of the Constitution, “ all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional.” The Chief Justice did not, it is true, in terms declare that legislation which is not thus appropriate, and plainly adapted to a lawful end, is unconstitutional, but such is the plain import of the argument advanced by him; and that conclusion must also follow from the principle that, when legislation of a particular character, is specially authorized, the opposite of such legislation is inhibited.
Tested by the rule given by Mr. Hamilton, or by the rule thus laid down by this court through Mr. Chief Justice Marshall, the annexing of a quality to the promises of the government for money borrowed, which will enable the holder to use them as a means of satisfying the demands of third parties, cannot be sustained as the exercise of an appropriate means of borrowing. That is only appropriate which has some relation of fitness to an end. Borrowing, as already stated, is a transaction by which, on one .side, the lender parts with his money, and on the other the borrower agrees to repay it in such form and at such time as may be stipulated. Though not a necessary part of the contract of borrowing, it is usual for the borrower to offes securities for the repayment of the loan. The fitness which would render .a means appropriate to this transaction thus considered must have respect to the terms which are essential to the contract, or to the- securities which the borrower may furnish as an . inducement to the loan. Tbr quality of legal tender does not touch the terms of the contract of borrowing, nor does :it stand as a security for the loan. A security supposes
There has been much confusion on this subject from a failure to distinguish between the adaptation of particular means to an end aud the effect, or supposed effect, of those mealns in producing results desired by the government. The argument is stated thus: the object of borrowing is to raise funds; the aunexing of the quality of legal tender to the notes of the gove? nment induces parties the more readily to loan upon them; the result desired by the government— the acquisition of funds — is thus accomplished; therefore, the annexing of the quality of legal tender is an appropriate means to the execution of the power to borrow. But it is evident that the same reasoning would justify, as appropriate means to the execution of this power, any measures which would result in obtaining the required funds. The annexing of a provision by which the notes of the government should serve as a free ticket in the public 'conveyances of the country, or for ingress into places of public amusement, or which would entitle the holder to a percentage out of the revenues of private corporations, or exempt his entire property, as well as the notes themselves, from State and municipal taxation, would produce a ready acceptance of the notes. But the advocate of the most liberal construction would hardly pretend that these measures, or similar measures touching the property of third parties, would be appropriate as a means to the execution of the power to borrow. Indeed, there is no invasion by government of the rights of third parties which might not thus be sanctioned upon the pretence that its allowance to the holder of the notes would lead to their ready acceptance and produce the desired loan.
The actual effect of the quality of legal tender in inducing parties to receive them was necessarily limited to the amount required by existing debtors, who did not scruple to discharge with them their pre-existing liabilities. For moneys desired from other parties, or supplies required for the use of the army or navy, the provision added nothing to the value of the notes. Their-borrowing power or purchasing
The inability of mere legislation to control this universal law of currency is strikingly illustrated by the history of the bills of credit issued by the Continental Congress during our Revolutionary War. From June, 1775, to March, 1780, these bills amounted to over $300,000,000. Depreciation followed as a natural consequence, commencing in 1777, when the issues only equalled $14,000,000. Previous to this time, in January, 1776, when the issues were only $5,000,000, Congress had, by resolution, declared that if any person should be “so lost to all virtue and regard to his country” as to refuse to-receive the bills in payment, he should, on conviction thereof by the committee of the city, county, or district, or, in case of appeal from their decision, by the assembly, convention, council, or committee of safety of the colony where he resided, be “ deemed, published, and treated as an enemy of his country, and precluded from all trade or intercourse with the inhabitants” of the colonies.
And in January, 1777, when as yet the issues were only $14,060,000, Congress passed this remarkable resolution:
“Resolved, That all bills of credit emitted by authority of Congress ought to pass current in all payments, trade, and dealings in these States, and be deemed in value equal to the same nominal sums in Spanish milled dollars, and that whosoever shall offer, ask, or receive more in the said bills for any gold or silver coins, bullion, or any other species of money whatsoever, than the nominal sum or amount thereof in Spanish milled dollars, or more in the said bills -for any lands, houses, goods, or commodities whatsoever than' the same could be purchased at of the same person or persons in gold, silver, or any other species of money whatsoever,
The several States promptly responded to the recommendations of Congress and made the bills a legal tender.for debts and the refusal to receive them an extinguishment of the debt.
■ Congress also issued, in September, 1779, a circular addressed to the people on the subject, in which they showed that the United States would be able to. redeem the bills, and they repelled with indignation the suggestion that there could be any violation of the public faith. “ The pride of America,” said the address, “revolts from the idea; her citizens know for what purposes these emissions were made, and have repeatedly plighted their faith for the redemption of them; they are to be found in every man’s possession, and every man is interested'in their being redeemed; they must, therefore, entertain a high opinion of American ere..dulity who suppose the people capable of believing, on due reflection,-that all America will, against the faith, the honor, and the interest of all America, be ever prevailed upon to countenance, support, or permit so ruinous, só disgraceful a
Yet in spite of the noble sentiments contained in this address, which bears the honored name of John Jay, then President of Congress and afterwards the first Chief Justice of this court, and in spite of legal tender provisions and harsh penal statutes, the universal law of currency prevailed. Depreciation followed until it became so great that the very idea of redemption at par was abandoned.
Congress then proposed to take up the bills by issuing new bills on the.credit of the several States, guaranteed by the United States, not exceeding one-twentieth of the amount of the old issue, the new bills to draw interest and be redeemable in six years. But the scheme failed and the bills became, during 1780, of so little value that they ceased to circulate and “ quietly died,” says the historian of the period, “ in the hands of their possessors.”
And it is within the memory of all of us that during the late rebellion the notes of the United States issued under the Legal Tender Act rose in value in the market as the successes of our arms gave evidence of an early termination of the war, and that they fell in value with every triumph of the Confederate forces. No legislation of Congress declaring these notes to be money instead of representatives
Without the legal tender provision the notes would have circulated equally well and answered all the purposes of government — the only direct benefit resulting from that provision arising, as already stated, from the ability it conferred upon unscrupulous debtors to discharge with them previous obligations. The notes of State banks circulated without possessing that quality and supplied a currency for the people just so long as confidence in the ability of-the banks to redeem the notes continued. The notes issued by the national bauk associations during the war, under the authority of Congress, amounting to $300,000,000, which were nfever made a legal tender, circulated equally well.with the notes of the United States. Neither their utility nor their circulation was diminished in anj' degree by the absence of a legal tender quality. They rose and fell in the market under the same influences and precisely to the same extent as the notes of the United States, which possessed this quality.
It is foreign, however, to my argument to discuss the utility of the legal tender clause. The utility of a measure is not the subject of judicial cognizance, nor, as already intimated, the test of its constitutionality. But the relation of the measure as a means to an end, authorized by the Constitution, is a subject of such cognizance, and the test of its constitutionality, when it is not prohibited by any specific provision of that instrument, and is consistent with its letter and spirit. “ The degree,” said Hamilton, “ in which a measure is necessary can never be a test of the legal right to adopt it. That must be a matter of opinion, and can only be a test of expediency. The relation between the means and the end, between the nature of á means employed toward the. execution of the power and the object of that power, must be the criterion of unconstitutionality; not the more or less of necessity or utility.”
Of course Congress must inquire in the first instance and determine for itself not only the expediency, but the fitness to the end intended, of every measure adopted by its legislation. But the power of this tribunal to revise these determinations in cases involving private rights has been uniformly asserted, since the formation of the Constitution to this day, by the ablest statesmen and jurists of the country.
I have thus dwelt at length upon the clause of the Constitution investing Congress with the power to borrow money on the credit of the United States, because it is under that power that the notes of the United States were issued, and it is upon the supposed enhanced value which the quality of legal tender gives to such notes, as the means of borrowing, that the validity and constitutionality of the provision annexing this quality are founded. It is true that, in the arguments of counselj and in the several opinions of different State courts, to which our attention has been called, and in the dissenting opinion in Hepburn v. Griswold, reference is also made to other powers possessed by Congress, particularly to declare war, to suppress insurrection, to raise and support armies, and to provide aud maintain a navy; all of which were called into exercise and severely taxed at the time the Legal Tender Act was passed. ''But it is evident that the notes have no relation to these-powers, or to any other powers of Congress, except as they furnish a convenient means for raising money for their execution. The existence of the war only increased the urgency of the government for funds. It did not add to its powers to raise such funds, or change, in any respect, the nature of those powers or the transactions which they authorized. If the
The Constitution has specifically designated the means by which funds can be raised for the uses of the government, either in war or peace. These are taxation, borrowing, coining, and the sale of its public property. Congress is empowered to levy and collect taxes, duties, imposts, and excises to any .extent which the public necessities may require. Its power to borrow is equally unlimited. It can convert any bullion it may possess into coin, and it can dispose of the public lands and other property of the United States or any part of such property. The designation of these means exhausts the powers of Congress on the subject of raising money. The designation of the means is a negation of all others', for the designation would be unnecessary and absurd if the use of any and all means were permissible without it. These means exclude a resort to forced loans, and to any compulsory interference with the property of third persons, except by regular taxation in one of the forms mentioned.
But this is not all. The power “to coin money” is, in my judgment, inconsistent with and repugnant to the existence of a power to make anything but coin a legal tender. To coin money is to mould metallic substances having intrinsic, value into certain forms convenient for commerce, and to impress them with the stamp of the government indicating their value. Coins are pieces of metal, of definite weight and value, thus stamped by national authority. Such is the natural import of the terms “to coin money” aud “ coin;” and if there were any doubt that this is their meaning in the Constitution, it would be removed by the language which immediately follows the grant of the “power
The power of regulation conferred is the power to determine the weight, and purity of the several coins struck, and their consequent relation to the monetary unit which might be established.by the authority of the government — a powbr which can be exercised with reference to the metallic coins of foreign countries, but. which is-incapable of execution with reference to their obligations or securities.
Then, in the clause of the Constitution immediately following, authorizing Congress “to provide for the punishment of counterfeiting the securities and current coin of the United States,” a distinction between the obligations and coins of the General government is clearly made. And in the tenth section, which forbids the States to “coin money, emit bills of credit, and make anything but gold and silver coin a tender in payment of debts,” a like distinction is made between coin and the obligations of the several States. The terms gold and silver as applied to the coin exclude the-possibility of any other conclusion.
Now, money in the true sense of the term is not only a medium of exchange, but it is a standard of value by which all other values are measured. Blackstone says, and Story repeats his "language, “Money is a universal medium or common standard, by a comparison with which the value of all merchandise may be ascertained, or it is a sign which represents the respective values of all commodities.”
Besides this, there cannot well be two different standards of value, and consequently two kinds of legal tender for the discharge of obligations arising from the same transactions. The standard or tender of the lower actual value would in such case inevitably exclude and supersede the other, for no one would use the standard or tender of higher value when his purpose could bo equally well accomplished by the use of the other. A practical illustration of the truth of this principle we have all seen in the effect upon coin of the act of Congress making the notes of the United States a legal tender. It drove coin from general circulation, and made it, like bullion, the su bject of sale and barter in the market.
The inhibition upon the States to coin money and yet to make anything but gold and silver coin a tender in payment of debts, must be read in connection with the grant of the coinage power to Congress. The two provisions taken together indicate beyond questiou that the coins which the National government was to fabricate, and the foreign coins, the valuation of which it was to regulate, were to consist principally, if not entirely, of gold and silver.
The framers of the Constitution were considering the subject of money to be used throughout the entire Union when these provisions were inserted, and it is plain that they intended by them that metallic coins fabricated by the National government, or adopted from abroad by its authority, composed of the precious metals, should everywhere be the standard and the only standard of value by which exchanges could be regulated and payments made.
“The circulating medium of a commercial community,’' says Mr. Webster, “must'be that which is also the circulating medium of other commercial communities, or .must be capable of being converted into that medium without loss. It must also be able not only to pass in payments and receipts among individuals of the same society and nation, but do adjust and discharge the balance of exchanges between different nations. It must be something which has a value abroad as well as at home, by which foreign as well as domestic debts can be satisfied. The precious metals alone answer these purposes. They alone, therefore, are money, and whatever else is to perform the functions of money must be their representative and capable of being turned into them at will. So long as bank paper retains this quality it is a substitute for money. Divested of this nothing can give it that character.”
The statesmen who framed the Constitution understood this principle as well as it is understood in our day. They had seen in the experience of the Revolutionary period the demoralizing tendency, the cruel injustice, and the intoler
And how the framers of the Constitution endeavored to establish this “sound and uniform currency” we have already seen in the clauses which they adopted providing for a currency of gold and silver coins. Their determination to sanction only a metallic currency is further evident from the debates in the Convention upon the proposition to authorize Congress to emit bills on the credit of the United States. By bills of credit, as the terms were then understood,.were meant paper issues, intended to circulate through the community for its ordinary purposes as money, bearing upon their face the promise of the government to pay the sums specified tliereon at a future day. The original draft contained a clause giving to Congress power “to borrow money and emit bills on the credit of the United States,” and when the clause came up for consideration, Mr. Morris moved to strike out the words “ and emit bills on the credit
If anything is manifest from these debates it is that the members of the Convention intended to withhold from Congress the power to issue bills to circulate as money — that is, to be receivable in compulsory payment, or, in other words, having the quality of legal tender — and that the express power to issue the bills was denied, under an apprehension that if granted it would give a pretext to Congress, under the idea of declaring their effect, to annex to them that quality. The issue of notes simply as a means of borrowing money, which of course would leave them to be received at the option of parties, does not appear to have been seriously questioned. The circulation of notes thus issued as a voluntary currency and their receipt in that character in payment of taxes, duties, and other public expenses, was not subject to the objections urged.
I am aware of the rule that the opinions and intentions of individual members of the Convention, as expressed in its debates and proceedings, are not to control the construction of the plain language of the Constitution or narrow down-the powers which that instrument confers. Members, it is said, who did not participate in the debate may have entertained different views from those expressed. The several
Mr. Luther Martin, a member of the Convention, in his speech before the Maryland legislature, as reported in his letter to that body, states the arguments urged against depriving.Congress of the power to emit bills of credit, and then says that a “majority of the Convention, being wise beyond every event and being willing to risk any political evil rather-than admit the idea of a paper emission in any possible case, refused to trust this authority to a government to which they were lavishing the most unlimited powers of taxation and to the mercy of which they were willing blindly to trust the liberty and property of the citizens of every State in the Union, and they erased that clause from the system
Not only was this construction given to the Constitution by its framers and the people in their discussions at the time it was pending before them, but until the passage of the 'act of 1862, a period of nearly three-quarters of a century, the soundness of this construction was never called in question by any legislation of Congress or the opinion of any judicial tribunal. Numerous acts, as already stated,
As until the act of 1862. there was no legislation making the acceptance of notes issued on the credit of the United States compulsory, the construction of the clause of the Constitution containing the grant of the coinage power never came directly before this court for consideration, and the attention of the court was only incidentally drawn to it. But whenever the court spoke on the subject, even incidentally, its voice was in entire harmony with that of the Convention.
Thus, in Gwin v. Breedlove,
It is difficult to pereejve how the trust and duty here designated, of “ creating and maintaining a uniform and metallic standard of value throughout the Union,” is discharged, when another standard of lower value and fluctuating character is authorized by law, which necessarily operates to drive the first from circulation.
In addition to all the weight of opinion I have mentioned we have, to the same purport, from the adoption of the Constitution up to the passage of the act of 1862, the united testimony of the leading statesmen and jurists of the country. -Of all the' men who, during that period, participated with any distinction in the councils of the nation, not one can be named who ever asserted any different power in Congress than what I have mentioned. As observed by the Chief ■Justice, statesmen who disagreed widely on other points .agreed on this.
If, now, we consider the history of the times when the Constitution was adopted; the intentions of the framers of that instrument, as shown in their debates; the contempora
There are other considerations besides those I have stated, which are equally convincing against the constitutionality of the legal tender provision of the act of February 25th, 1862, so far as it applies to private debts and debts by the government contracted previous to its passage. That provision operates directly to impair the obligation of such contracts. In the dissenting opinion, in the case of Hepburn v. Griswold, this is admitted to be its operation, and the position is taken that, while the Constitution forbids the States to pass such laws, it does not forbid Congress to do this, and the power to establish a uniform system of bankruptcy, which is expressly conferred, is mentioned in support of the position. In some of the opinions of the State courts, to which our. attention has been directed, it is denied that the provision in question impairs the obligation of previous contracts, it being asserted that a contract to pay money is satisfied, according to its meaning, by the payment of that which is money when the payment is mad,e, and that if the law does not interfere with this mode of satisfaction, it does not impair the obligation of the contract. This position is true so long as the term money represents the same thing in both cases or their actual equivalents, but it is not true when the term has different meanings. Money is a generic term, and contracts for money are not made without a specification of the coins or denominations of money, and the
A law which changes the terms of the contract, either in the time or -mode of performance, or imposes , new conditions, or dispenses with those expressed, or-authorizes for its satisfaction something different from that provided, is a law which impairs its obligation, for such a law relieves the parties from the moral duty of performing the original stipulations of the contract, and it prevents their legal enforcement.
The notion that contracts for the payment of money stand upoii any different footing in this respect from other contracts appears to have had its origin in certain old English cases, particularly that of mixed money,
It. is obvious that the act of 1862 changes the terms of contracts for the payment of money made previous to its passage, in. every essential particular. All such contracts had reference to metallic coins, struck or regulated by Congress, and composed principally of gold and silver, which constituted the legal money of the country. The several
. . They had .established the dollar as the money unit, and prescribed the grains of silver it should contain, and the grains of-gold which, should compose the different gold coins. .Every, dollar was therefore a piece of gold or silver certified to be of a specified weight and purity, by its form and impress. A contract to pay a specified number of dollars was then a contract to 'deliver the designated number of pieces of gold or silver of this character; and by the laws of Congress and of the several States the delivery of such dollars'could be enforced by the holder.
The,act of. 1862 changes all this; it declares that gold or .silver dollars need not-be delivered to the creditor according to the stipulations of the contract; that they need not be delivered at all; that promises of the United Statеs, with which the creditor has had no relations,-to pay these dollars, at some uncertain future day, shall be received in discharge ,of the contracts-r-in other words, that the holder of such contracts shall, take in .substitution for them different contracts with, another party, less valuable to him, and surrender the Original.
Taking it, therefore, for granted that the law plainly impairs the obligation of such contracts, I proceed to inquire whether it is for that reason subject to any constitutional objection. In the dissenting opinion in Hepburn v. Griswold, it is .said, as already mentioned, that the Constitution does not forbid legislation impairing the obligation of contracts.
It, js. true there is no provision In the Constitution forbidding in. express terms such legislation.' And it is also true that,,there.;are express powers delegated'to Congress, the execution.of which necessarily operates to impair the obligation of contracts. It was the- object of-the framers- of that instrument, to create a National government competent to represent- the .entire country in its- relations with foreign nations and.to accomplish by its legislation measures of
The only express authority for any legislation affecting the obligation of contracts is found in the power to establish a uniform’ system of bankruptcy, the direct object of which is to release, insolvent debtors from their contracts upon the surrender of their property. From this express grant in the Constitution I draw a very different conclusion from that drawn in the dissenting opinion in Hepburn v. Griswold, and in the opinion of the majority of the court just delivered. To my mind it is a strong argument that there is no general power in Congress to interfere with contracts, that a special grant was regarded as essential to authorize a uniform system of bankruptcy. If such general, -power existed the delegation of an express power in the case ■ of bankrupts, was unnecessary. As very justly observed by-counsel, if this sovereign power could be taken in any case without express
The grant of a limited power over the subject of contracts necessarily implies that the framers of the Constitution, did not intend that Congress should exercise unlimited power, or any power less restricted. The limitation designated is the measure of congressional power over the subject. This follows from the nature of the instrument as one of enumerated powers.
The doctrine that where a power is not expressly forbidden it may be exercised, would change the whole character of our government. As T read the writings of the great commentators and' the decisions of this court, the true doctrine is the exact reverse, that if a power is not in terms granted, and is not necessary and proper for the exercise of a power thus granted, it does not exist.
The position that Congress possesses some undefined power to do anything which it may deem expedient, as a , resulting power from the general purposes of the government, which is advanced in the opinion of the majority, would of course settle the question under consideration without difficulty, for it would end all controversy by changing our government from one of enumerated-, powers to one resting in the unrestrained will of Congress.
“The government of the United States,” says Mr. Chief Justice Marshall, speaking for the court in Martin v. Hunter’s Lessee
The answer to this position is found in the nature of the Constitution, as one of granted powers, as stated by Mr. Chief Justice Marshall. The inhibition upon the exercise-of a specified power does not warrant the implication that, but for such inhibition, the power might have been exercised. In the Convention which framed the Constitution a proposition to appoint a committee to prepare a bill of rights was unanimously rejected, and it has been always understood, that its rejection was upon the ground that such a bill would contain various exceptions to powers not granted, and on this very account would afford a pretext for asseí-ting more than was granted.* In the discussions before the people, when the adoption of the Constitution was pending, no objection was urged with greater effect than this absence of a bill of right8,,and in one of the numbers of the Federalist, Mr. Hamilton endeavored to combat the objection. After stating several reasons why such a bill was not necessary, he said: “I go further and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would even-be dangerous. They would contaiu various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is, no power‘to do? ' Why, for instance, should it be said that the liberty of the press shall not be restrained -when no power is given by which restrictions may be imposed ? I will not
When the .amendments were presented to the States for adoption they were preceded by a preamble stating that the conventions' of a number of the States had, at the time of their adopting the Constitution, expressed a desire “in order to prevent misconception or abuse of its powers, that further declaratory and restrictive clauses should be added.”
Now, will any one pretend that Congress could have made a law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the right of the people to assemble and petition the government for a redress of grievances, had not prohibitions upon the exercise of any such legislative power been embodied in an amendment ?
How truly did Hamilton say that had a bill of rights been inserted in the Constitution, it would have given a handle to the doctrine of constructive powers. We have this day an illustration in the opinion of the majority of the very claim of constructive power which he apprehended, and it is the first instance, I believe, in the history of this court, when the possession by Congress of such constructivé power has been asserted.
. The interference with contracts by the legislation of the several States previous to the adoption of the Constitution
To prevent the. recurrence of evils of'this character not only was the clause inserted in the Constitution prohibiting the States from issuing, bills of credit and making anything but gold and silver a tender in payment of debts, but also the more general prohibition, from passing any law impairing the obligation of contracts.- “To restore public confidence completely,” says Chief Justice Marshall,
It would require very clear evidence, one would suppose, to induce a belief that with the evils resulting from what Marshall terms-the system/,of lax legislation-following the
When the possession of this power has been asserted in argument (for until now it has never been asserted in any decision of this court), it has been in cases where a supposed public benefit resulted from the legislation, or where the interference with the obligation of the contract was very slight. Whenever a clear case of injustice, in the absence of such supposed public good, is stated, the exercise of the power by the government is not only denounced but the existence of the power is denied. No one, indeed, is found bold enough to contend that if. A. has a contract for one hundred acres of land, or one hundred pounds of fruit, or one hundred yards of cloth, Congress can pass a law compelling him to accept one-half of the quantity in satisfaction of the contract. Rut Congress has the same power to establish a standard of-weights and measures as it has to establish a .standard of value, and can, from time to time, alter such standard. It can declare that the acre shall consist of eighty square rods instead of one hundred and sixty, the pound of eight ounces instead of sixteen, and the foot of six inches instead of twelve, and if it could compel the acceptance of the earn & number of acres, pounds, or yards, after suchaltera- ' tion, instead of the actual quantity stipulated, then the acceptance of one-half of the quantity originally designated could be directly required without going through the form of altering the standard. No just man could be imposed upon by this use of words in a double sense, where the same names were applied to denote different quantities of the same thing, nor would his condemnation of the wrong committed in such case be withheld, because the attempt was made to conceal it by this jugglery of words.
The power of Congress to interfere with contracts for the payment of money is not greater or in any particular different from its power with respect to contracts for lands or
Let us for a moment see where the doctrine of the power asserted will lead. Congress has the undoubted right to give such denominations as it chooses to the coins struck by. its authority, and to change them. It can declare that the dime shall hereafter be called a dollar, or, what is the same thing, it may declare that the dollar shall hereafter be composed of the grains of silver which now compose the dime. But would anybody pretend that a contract for dollars, composed as at present, could be satisfied by the delivery of an equal number of dollars of the new issue? I have never met any one who would go to that extent. The answer always has been that would-be too flagrantly unjust to be tolerated. Yet enforcing the acceptance of paper promises or paper dollars, if the promises can be so called, in place of gold or silver dollars, is equally enforcing a departure from the terms of the contract, the injustice of the measure depending entirely upon the actual value at the time of the promises in the market. Now reverse the case. Suppose Congress should declare that hereafter the eagle should be called a dollar, or that the dollar should be composed of as many grains of gold as the eagle, would anybody for a moment contend that a contract for dollars, composed as now of silver, should be satisfied by dollars composed of gold ? I am confident that no judge sitting on this bench, and, indeed, that no judge in Christendom could be found who would sanction the monstrous wrong by decreeing that the debtor could only satisfy his contract in such case by paying ten times the value originally stif ated. JThe natural sense of right which is implanted in every mind would revolt from such supreme injustice. Yet there cannot he one law for debtors and another law for creditors. If the contract can at one time be changed by congressional
For acts of flagrant' injustice such as those mentioned there is no authority in any legislative body, even though not restrained by any express, constitutional-prohibition. For as there are unchangeable principles of right and morality, without which society would be impossible, and men would be but wild beasts preying upon each other, so there are fundamental principles of eternal justice, upon the existence of which all constitutional government is founded, and without which government would be an intolerable and hateful tyranny. There are acts, says Mr. Justice Chase, in Calder v. Bull,
In Ogden v. Saunders,
In Wilkeson v. Leland
Similar views to these cited from the opinions of Chase, Thompson, Story, and Marshall, are found scattered through the opinions of the judges who have precеded us on this bench. As against their collective force the remark of Mr. Justice Washington, in the case of Evans v. Eaton,
The motion did not merit any consideration, as the Federal court had no power to grant a nonsuit against the will of the plaintiff in any case. The expression under these circumstances of any reason why the court would not grant the motion, if it possessed the power, was aside the case, and is not, therefore, entitled to any weight whatever as authority. It was true, however, as observed by the court, that no such contract with the public, as statéd, was implied, and inasmuch as Congress was expressly authorized by the Constitution to secure for a limited time to inventors the exclusive right to their discoveries, it had the power in that way to impair the obligation of such a contract, if any had existed. And this is perhaps, all that Mr. Justice Washington meant. It is evident from his language in Ogden v. Saunders, that he repudiated the existence of any general power in Congress to destroy or impair vested private rights.
It follows, then, logically, from the doctrine advanced by the majority of the court as to the power of Congress over the subject of legal tender, that Congress may borrow gold coin upon a pledge of the public faith to repay gold at the maturity of its obligations, and yet, in direct disregard of its.
The government is, at the present time, seeking, in the markets of the world, a loan of several hundred millions'of dollars in gold upon securities containing the promises of the United States to repay the money, principal and interest, in gold'; yet this court, the highest tribunal of the country, this day declares, by its solemn decision, that should such loan be obtained, it is entirely competent for Congress to pay it off, not in gold, but in notes of the United States themselves, payable at such time and in such manner as Congress may itself determine, and that legislation sanctioning such gross breach of faith would not be repugnant to the fundamental law of the land.
What is this but declaring that repudiation by the government of the United States of its'solcmn obligations would be constitutional ? Whenever the fulfilment of the obligation in the manner stipulated is refused, and the acceptance of something different from that stipulated is enforced against the will of the creditor, a breach of faith is committed; and to the extent of the difference of value between the thing stipulated and the thing which the creditor is compelled to receive, there is repudiation of the original obligation. I am not willing to admit that the Constitution, the boast and glory of our country, would sanction or permit any such legislation. Repudiation in any form, or to any extent, would be dishonor, and for the commission of this public crime no warrant, in my judgment, can ever be found in that instrument.
Some stress has been placed in argument in support of the asserted power of Congress over the subject of legal tender in the fact that Congress can regulate the alloy of the coins .issued under its authoi’ity, and has exercised its power in this respect, without question, by diminishing in some instances, the actual quantity of gold or silver they contain. (Congress, it is assumed, can thus put upon the coins issued
The assumption and the inference are both erroneous, and the argument thus advanced is without force, and.is only significant of the weakness of the position which has to rest for its support on an assumed authority of the government to debase the coin of the country.
Undoubtedly Congress can alter the valué of the coins issued by its authority by increasing or diminishing, from time to time,'the alloy they, contain, just as it may alter, at its pleasure, the denominations of the several coins issued, -but there its power stops. ' It cannot make these altered coins the equivalent of the coins in their previous condition; ‘ and, if the new coins should retain the same names as the original* †'.they would only be current at their true value. Any declaration that they should have any other value would be inoperative in fact, and a monstrous disregard by Congress of its constitutional duty. The power to coin money, as already declared by this court,
In progress of time, owing to the increased production of silver, particularly from the mines of Mexico and South America, this relative value was changed. Silver declined in relative value-to gold until it bore the relation of one to sixteen instead of one to fifteen. The result was that the gold was bought up as soon as coined, being worth intrinsically sixteen times the value of silver, and yet passing by law only at fifteen times such value, and was sent out of the country to be recoined. The attention of Congress was-called to this change in the relative value of the two metals and the consequent disappearance of gold coin. This led, in 1884,
The discovery of gold in California, sorné years after-wards, and the great production of that metal, again changed in another direction the relative value of the two. metals. Gold declined, or in other words, silver was at a premium, and as gold coin before 1834 was bought up, so now silver coin was bought up, and- a scarcity of small coin for change was felt in the community. Congress again interfered, and in 1853 reduced the amount of silver in coins representing fractional parts of a dollar, but even then these coins, were restricted from being a legal tender for sums exceeding five
The whole of this subject has been fully and satisfactorily explained in the very able and learned argument of the counsel who contended for the maintenance'of the original decision of this' court in Hepburn v. Griswold. He showed by the debates that Congress has been moved, in all its actions under the coinage power, only by an anxious'desire to ascertain the true relative value.of the two precious metals, and to fix the coinage in accordance with it; and that in'no case has any deviation from intrinsic value been permitted except in coins for fractional parts of a dollar, and even that has been only of so1 slight a character as to prevent them from being converted into bullion, the actual depreciation being made up by their portability-and convenience.
It follows, from this statement of the action of Congress in altering at different times the alloy of certain coins, that the assumption of power to stamp metal with ah arbitrary value and give it currency, does not rest upon any solid foundation, and that the argument built thereon goes with it to the ground,
I have thus far spoken of the legal tender provision with particular reference to its application to debts contracted previous to its passage. It only remains to say a few words as .to its validity when applied to subsequent transactions.
So far as subsequent contracts are made payable in notes of the United States, there can of course be no objection to their specific enforcement by compelling a delivery of an equal amount of the notes, or -by a judgment in damages for their value as estimated in gold or silver dollars, nor would there be any objection to such enforcement if the legal tender provision had never existed. From the general use
Speaking of paper money issued by the States, — and the same language is equally true of paper money issued by the United States — Chief Justicé Marshall says, in Craig v. The State of Missouri:
Mr. Justice Washington, after referring, .in. Ogden v. Saunders,
It is plain that this policy cannot be carried out, and this fixed and uniform metallic standard of value throughout the United States be maintained, so long as any other standard is adopted, which of itself has no intrinsic value and is forever fluctuating and uncertain.
In the discussions which have attended this subject of legal tender there has been at times what seemed to me to be a covert intimation, that opposition to the measure in question, was the expression of a spirit not altogether favorable to the cause, in the interest of which that measure Was adopted. All such intimations I repel with all the energy I can express.' I do not yield to any one in honoring and reverencing the noble and patriotic men who were in the councils of the nation during the terrible struggle with the rebellion. To them belong the greatest of all glories in our history, — that of having saved the Union, and that of having emancipated a race. For these results they will be remembered and honored so long as the English lauguage is spoken or read among men. But I do not admit that a blind approval of every measure which they may have thought esseutial to put down the rebellion is any evidence of loyalty to the country; The only loyalty which I cau admit consists in obedience to the Constitution and laws made in pursuance of it. It is only by obedience that affection and reverence can be shown to a superior having a
8 Wallace, 603.
12 Stat. at Large, 345.
2 Stat. at Large, 766.
2 Stat. at Large, 801.
Acts of Congress authorizing the issue of treasury notes: 2 Slat, at Large, 766, approved June 30, 1812; Id. 801, approved February 25, 1813 ; 3 Stat. at Large, 100, approved March 4, 1814; Id. 161, approved December 26, 1814; Id. 213, approved February 24, 1815; 5 Stat. at Large, 201, approved October 12, 1837 ; Id 228, approved May 21, 1833 ; Id 323, approved March 2, 1839; Id. 370, approved March 31, 1810; Id. 411, approved February 15, 1841; Id. 469, approved January 31,1812; Id. 473, approved April 15, 1842; Id. 581, approved August 31, 1842; Id. 614, approved March 3, 1813 ; 9 Stat. at Large, 39, approved July 22,1846 ; Id. 64, approved August 6, 1846; Id. 118, approved January 28,1847 ; 11 Stat at Large, 257, approved December 23. 1857; Id. 430, approved March 3d, 1859.
The Federalist, No. 44.
2 Journals of Congress, 21.
5 Journals of Congress, p. 851. This address was written by Mr. Jay (See Flanders’s Lives and Times of tlie Chief Justices, vol. 1, p. 256.)
Pitkin’s History, vol. 2, p. 157.
1 Blaekstone’s Commentaries, 276; 1 Story on the Constitution, $ 1118.
Genesis 23:16.
Webster’s Works, vol. 3, page 41.
Webster’s Works, vol. 3, p. 395.
Madison Papers, vol. 3, page 1346.
Benton’s Abridge vol. 5, p. 361.
Darvie's Reports, 48.
Journal of the Convention, 869; Story on the Constitution, 1861, 1862, and note.
The Federalist, No. 84.
Commentaries on the Constitution, 8, sec. 1371.
Sturgis Crowninshield,
1 Peters’s Circuit Court, 323.
United States v. Marigold,
Mill’s Political Economy, vol. 2, p. 20.
4 Stat. at Large, 699.