We agree that much of what was said in the dissenting opinion in that

case, which has become the opinion of a majority of the court as now

constituted, was correctly said. We fully agree in all that was quoted

from Chief Justice Marshall. We had indeed accepted, without reserve,

the definition of implied powers in which that great judge summed up his

argument, of which the language quoted formed a part. But if it was

intended to ascribe to us "the doctrine that when an act of congress is

brought to the test of this clause of the constitution," namely, the

clause granting the power of ancillary legislation, "its necessity must

be absolute, and its adaptation to the conceded purpose unquestionable,"

we must be permitted not only to disclaim it, but to say that there is

nothing in the opinion of the then majority which approaches the

assertion of any such doctrine. We did indeed venture to cite, with

approval, the language of Judge Story in his great work on the

constitution, that the words necessary and proper were intended to have

"a sense at once admonitory and directory," and to require that the

means used in the execution of an express power "should be _bona fide_,

appropriate to the end," and also ventured to say that the tenth

amendment, reserving to the states or the people all powers not

delegated to the United States by the constitution, nor prohibited by it

to the states, "was intended to have a like admonitory and directory

sense," and to restrain the limited government established by the

constitution from the exercise of powers not clearly delegated or

derived by just inference from powers so delegated. In thus quoting

Judge Story, and in this expression of our own opinion, we certainly did

not suppose it possible that we could be understood as asserting that

the clause in question "was designed as a restriction upon the ancillary

power incidental to every grant of power in express terms." It was this

proposition which "was stated and refuted" in _McCulloch_ v. _Maryland_.

That refutation touches nothing said by us. We assert only that the

words of the constitution are such as admonish congress that implied

powers are not to be rashly or lightly assumed, and that they are not to

be exercised at all, unless, in the words of Judge Story, they are

"_bona fide_ appropriate to the end," or, in the words of Chief Justice

Marshall, "appropriate, plainly adapted" to a constitutional and

legitimate end, and "not prohibited, but consistent with the letter and

spirit of the constitution."

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. The difference had reference

to the application of the rule rather than to the rule itself.

The then 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 and forbidden to the states." It seemed to them not

an "unreasonable inference" that, in a certain contingency, "making the

securities of the government perform the 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 power to regulate commerce. This was

the doctrine of the _Veazie Bank_ v. _Fenno_, although not fully

elaborated in that case. The question whether the quality of legal

tender can be imparted to these bills depends upon distinct

considerations.

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? or, to state 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

United States a legal tender suggested. He urged the issue of notes

payable on demand in coin or received as coin in payment of duties. When

the state banks had suspended specie payments, he recommended the issue

of United States notes receivable for all loans to the United States and

all government dues except duties on imports. In his report of December,

1862, he said that "United States notes receivable for bonds bearing a

secure specie interest are next best to notes convertible into coin,"

and after stating the financial measures which in his judgment were

advisable, he added: "The secretary recommends, therefore, no mere paper

money scheme, but on the contrary a series of measures looking to a safe

and gradual return to gold and silver as the only permanent basis,

standard, and measure of value recognized by the constitution." At the

session of congress before this report was made, the bill containing the

legal tender clause had become a law. He was extremely and avowedly

averse to this clause, but was very solicitous for the passage of the

bill to authorize the issue of United States notes then pending. He

thought it indispensably necessary that the authority to issue these

notes should be granted by congress. The passage of the bill was

delayed, if not jeoparded, by the difference of opinion which prevailed

on the question of making them a legal tender. It was under these

circumstances that he expressed the opinion, when called upon by the

committee of ways and means, that it was necessary; and he was not sorry

to find it sustained by the decisions of respected courts, not unanimous

indeed, nor without contrary decisions of state courts equally

respectable. Examination and reflection under more propitious

circumstances have satisfied him that this opinion was erroneous, and he

does not hesitate to declare it. He would do so, just as unhesitatingly,

if his favor to the legal tender clause had been at that time decided,

and his opinion as to the constitutionality of the measure clear.

Was the making of the notes a legal tender necessary to the carrying on

the war? In other words, was it necessary to the execution of the power

to borrow money? It is not the question whether the issue of notes was

necessary, nor whether any of the financial measures of the government

were necessary. The issuing of the circulation commonly known as

greenbacks was necessary, and was constitutional. They were necessary to

the payment of the army and the navy and to all the purposes for which

the government uses money. The banks had suspended specie payment, and

the government was reduced to the alternative of using their paper or

issuing its own.

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 bond 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 pay the premium

for specie in the prices of commodities. The difference to them, in the

currency, whether of coin or of paper, would be in the fluctuations to

which the latter is subject. So long as notes should not sink so low as

to induce creditors to refuse to receive them because they could not be

said to be in any just sense payments of debts due, a provision for

making them a legal tender would be without effect except to discredit

the currency to which it was applied. The real support of note

circulation not convertible on demand into coin, is receivability for

debts due the government, including specie loans, and limitation of

amount. If the amount is smaller than is needed for the transactions of

the country, and the law allows the use in these transactions of but one

description of currency, the demand for that description will prevent

its depreciation. But history shows no instance of paper issues so

restricted. An approximation in limitation is all that is possible, and

this was attempted when the issues of United States notes were

restricted to one hundred and fifty millions. But this limit was soon

extended to four hundred and fifty millions, and even this was soon

practically removed by the provision for the issue of notes by the

national banking associations without any provision for corresponding

reduction in the circulation of United States notes; and still further

by the laws authorizing the issue of interest-bearing securities, made a

tender for their amount, excluding interest.

The best support for note circulation is not limitation, 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 coin 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 bonds, they would be at par. In other words, specie

payments would be resumed.

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 practically 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 point 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 without it.

We have no hesitation, therefor, 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

obnoxious to such objections can be maintained as the exercise of an

implied power. There can be no implication against the constitution.

Legislation to be warranted as the exercise of implied powers must not

be "prohibited, but consistent with the letter and spirit of the

constitution."

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 destroy 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 the 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

law impairing the obligation of contracts made before its passage," but

it is immediately added: "While the constitution forbids the states to

pass such laws, it does not forbid congress," and this opinion, as well

as the opinion just read, refers to the express authority to establish a

uniform system of bankruptcy as a proof that it was not the intention of

the constitution to withhold that power. It is true that the

constitution grants authority to pass a bankrupt law, but our inference

is, that in this way only can congress discharge the obligation of

contracts. It may provide for ascertaining the inability of debtors to

perform their contracts, and, upon the surrender of all their property

may provide for their discharge. But this is a very different thing

from providing that they may satisfy contracts without payment, without

pretence of inability, and without any judicial proceeding.

That congress possesses the general power to impair the obligation of

contracts is a proposition which, to use the language of Chief Justice

Marshall, "must find its vindication in a train of reasoning not often

heard in courts of justice." "It may well be added," said the same great

judge, "whether the nature of society and of government does not

prescribe some limits to legislative power; and, if any be prescribed,

where they are to be found, if the property of an individual, fairly and

honestly acquired, can be seized without compensation? To the

legislature all legislative power is granted, but the question whether

the act of transferring the property of an individual to the public is

in the nature of a legislative power is well worthy of serious

reflection."

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 case 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. They

apply with great force to the construction of the constitution of the

United States. In like manner and spirit Mr. Justice Chase had

previously declared that "an act of the legislature contrary to the

great first principles of the social compact cannot be considered a

rightful exercise of legislative authority." Among such acts he

instances "a law that destroys or impairs the lawful private contracts

of citizens." Can we be mistaken in saying that such a law is contrary

to the spirit of a constitution ordained to establish justice? Can we be

mistaken in thinking that if Marshall and Story were here to pronounce

judgment in this case they would declare the legal tender clause now in

question to be prohibited by and inconsistent with the letter and spirit

of the constitution?

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

lawfulness of contracts stipulating for payment in such notes, or the

propriety of enforcing the performance of such contracts by holding the

tender of such currency, according to their terms, sufficient. The

question is, Has congress power to make the notes of the government,

redeemable or irredeemable, a legal tender without contract and against

the will of the person to whom they are tendered? In considering this

question we assume as a fundamental proposition that it is the duty of

every government to establish a standard of value. The necessity of such

a standard is indeed universally acknowledged. Without it the

transactions of society would become impossible. All measures, whether

of extent, or weight, or value, must have certain proportions of that

which they are intended to measure. The unit of extent must have certain

definite length, the unit of weight certain definite gravity, and the

unit of value certain definite value. These units, multiplied or

subdivided, supply the standards by which all measures are properly

made. The selection, therefore, by the common consent of all nations, of

gold and silver as the standard of value was natural, or, more

correctly speaking, inevitable. For whatever definitions of value

political economists may have given, they all agree that gold and silver

have more value in proportion to weight and size, and are less subject

to loss by wear or abrasion than any other material capable of easy

subdivision and impression, and that their value changes less and by

slower degrees, through considerable periods of time, than that of any

other substance which could be used for the same purpose. And these are

qualities indispensable to the convenient use of the standard required.

In the construction of the constitutional grant of power to establish a

standard of value, _every presumption_ is, therefore, against that which

would authorize the adoption of any other materials than those

sanctioned by universal consent.

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 used at the time the constitution was adopted. And we have

been referred to no authority which at that time defined coining

otherwise than as minting or stamping metals for money; or money

otherwise than as metal coined for the purposes of commerce. These are

the words of Johnson, whose great dictionary contains no reference to

money of paper.

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 representatives 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; and the idea that

it was ever designed to make such notes a standard of value by the

framers of the constitution is wholly new. It seems to us impossible

that it could have been entertained. Its assertion seems to us to

ascribe folly to the framers of our fundamental law, and to contradict

the most conspicuous facts in our public history.

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,

and 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 sense of the convention which framed the constitution is clear, from

the account given by Mr. Madison of what took place when the power to

emit bills of credit was stricken from the reported draft. He says

distinctly that he acquiesced in the motion to strike out, because the

government would not be disabled thereby from the use of public notes,

so far as they would be safe and proper, while it cut off the pretext

for a paper currency, and particularly for making the bills a tender

either for public or private debts. The whole discussion upon bills of

credit proves, beyond all possible question, that the convention

regarded the power to make notes a legal tender as absolutely excluded

from the constitution.

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;

and the views which it promulgated may be fairly regarded as the views

of those who voted for adoption.

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 be issued. Until

recently no one in congress ever suggested that that body possessed

power to make anything else a standard of value.

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 opinion but the universal and settled conviction

of the country when he said: "Most unquestionably there is no legal

tender, and there can be no legal tender in this country, under the

authority of this government or any other, but gold and silver, either

the coinage of our mints or foreign coin at rates regulated by congress.

This is a constitutional principle, perfectly plain and of the very

highest importance. The states are prohibited from making anything but

gold and silver a tender in payment of debts, and although no such

express prohibition is applied to congress, _yet as congress has no

power granted to it in this respect but to coin money and regulate the

value of foreign coin_, it clearly has no power to substitute paper or

anything else for coin as a tender in payment of debts and in discharge

of contracts."

And this court, in _Gwin_ v. _Breedlove_, said: "_By the constitution of

the United States gold and silver coin_ made current by law _can only be

tendered_ in payment of debts." And in _The United States_ v.

_Marigold_, this court, speaking of the trust and duty of maintaining a

uniform and pure metallic standard of uniform value throughout the

Union, said: "The power of coining money and regulating its value _was

delegated to congress by the constitution for the very purpose_, as

assigned by the framers of that instrument, _of creating and preserving

the uniformity and purity of such a standard of value_."

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 in understanding, if the opinions of courts

avail anything in determine the meaning of the constitution, it seems

impossible to doubt that the power to coin money 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.

My brothers Clifford and Field concur in these views, but in

consideration of the importance of the principles involved will deliver

their separate opinions. My brother Nelson also dissents.

CHAPTER III.

DISSENTING OPINION OF JUSTICE CLIFFORD.

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.

Coined money, such as is authorized by that clause of the instrument,

consists only of the coins of the United States fabricated and stamped

by authority of law, and is the same money as that described in the next

clause of the same section as the current coins of the United States,

and is the same money also as "the gold and silver coins" described in

the tenth section of the same article, which prohibits the states from

coining money, emitting bills of credit, or making "anything but gold

and silver coin a tender in payment of debts."

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 to be either current coins or a standard of value as

contemplated by the constitution. Commercial transactions imperiously

require a standard of value, and the commercial world, at a very early

period in civilization, adopted gold and silver as the true standard for

that purpose, and the standard originally adopted has ever since

continued to be so regarded by universal consent to the present time.

Paper emissions have, at one time or another, been authorized and

employed as currency by most commercial nations, and by no government,

past or present, more extensively than by the United States, and yet it

is safe to affirm that all experience in its use as a circulating medium

has demonstrated the proposition that it cannot by any legislation,

however stringent, be made a standard of value or the just equivalent of

gold and silver. Attempts of the kind have always failed, and no body

of men, whether in public or private stations, ever had more instructive

teachings of the truth of that remark than the patriotic men who framed

the federal constitution, as they had seen the power to emit bills of

credit freely exercised during the war of the Revolution, not only by

the confederation, but also by the states, and knew from bitter

experience its calamitous effects and the utter worthlessness of such a

circulating medium as a standard of value. Such men so instructed could

not have done otherwise than they did do, which was to provide an

irrepealable standard of value, to be coined from gold and silver,

leaving as little upon the subject to the discretion of congress as was

consistent with a wise forecast and an invincible determination that the

essential principles of the constitution should be perpetual as the

means to secure the blessings of liberty to themselves and their

posterity.

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 prescribed by the constitution, in times of

fluctuation, if the circulating medium could be supplied by foreign

coins not subject to any congressional regulation as to their 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

enacting 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,

as 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 confederation to organize the executive departments, and for

the establishment of a mint, but the new constitution did not perpetuate

any of those laws, and yet congress continued to legislate for a period

of three years before any new law was passed prescribing the money unit

or the money of account, either for "the public offices" or for the

courts. Throughout that period it must have been understood that those

matters were impliedly regulated by the constitution, as tariffs were

enacted, tonnage duties imposed, laws passed for the collection of

duties, the several executive departments created, and the judiciary of

the United States organized and empowered to exercise full jurisdiction

under the constitution.

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

regulation 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, under those regulations, was to 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. By that act, the secretary of the treasury is declared to be the

head of the department, and it is made his duty, among other things, to

digest and prepare plans for the improvement and management of the

public finances and for the support of the public credit; to prepare and

report estimates of the public revenue and of the public expenditures;

to superintend the collection of the revenue; to prescribe forms of

keeping and stating accounts and for making returns; to grant all

warrants for moneys to be issued from the treasury, in pursuance of

appropriations by law, and to perform all such services relative to the

finances as he shall be directed to perform.

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 and 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 were 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, 1782, more than a year before the treaty of peace,

in favor of creating such an establishment, and on the 16th of October,

1786, the congress adopted an ordinance providing that a mint should be

established for the coinage of gold, silver, and copper, agreeable to

the resolves of congress previously mentioned, which prescribed the

standard of gold and silver, and recognized the money unit established

by the resolves passed in the preceding year.

Congressional legislation organizing the new government had now

progressed to the point 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 provisions, 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 and 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 4/16ths 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 coin called dollar is the coin

employed for that purpose, as is obvious from the fact that the words

dollars and units are treated as synonymous, and that all the gold coins

previously described in the same section are measured by that word as

the acknowledged money unit of the constitution. Very strong doubts are

entertained whether an act of congress is absolutely necessary to

constitute the gold and silver coins of the United States, fabricated

and stamped as such by the proper executive officers of the mint, a

legal tender in payment of debts. Constituted, as such coins are, by the

constitution, the standard of value, the better opinion would seem to be

that they become legal tender for that purpose, if minted of the

required weight and fineness, as soon as they are coined and put in

circulation by lawful authority, but it is unnecessary to decide that

question in this case, as the congress, by the 16th section of the act

establishing a mint, provided that all the gold and silver coins which

shall have been struck at, and issued from, the said mint shall be a

lawful tender in all payments whatsoever--those of full weight

"according to the respective values herein declared, and those of less

than full weight at values proportioned to their respective weights."

Such a regulation is at all events highly expedient, as all experience

shows that even gold and silver coins are liable to be diminished in

weight by wear and abrasion, even if it is not absolutely necessary in

order to constitute the coins, if of full weight, a legal tender.

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 twentieth

section of that act, which provides that the money of account of the

United States shall 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 were, to put

the new government into successful operation, by the passage of that

act, it will be instructive to take a brief review of the important

events which occurred within the period of ten years next preceding its

passage, or of the ten years next following the time when that measure

was first proposed in the congress of the confederation. Two reasons

suggest the 21st of February, 1782, as the time to commence the review,

in addition to the fact that it was on that day that the committee of

congress made their report approving of the project to establish a

national mint. They are as follows: (1) Because that date just precedes

the close of the war of the Revolution; and (2) because the date at the

same time extends back to a period when all America had come to the

conclusion that all the paper currency in circulation was utterly

worthless, and that nothing was fit for a standard of value but gold and

silver coin fabricated and stamped by the national authority. Discussion

upon the subject was continued, and the ordinance was passed, but the

measure was not put in operation, as the convention met the next year,

and the constitution was framed, adopted, and ratified, the president

and the members of congress were elected, laws were passed, the judicial

system was organized, the executive departments were created, the

revenue system established, and provision was made to execute the power

vested in congress to coin money and provide a standard of value, as

ordained by the constitution.

Perfect consistency characterizes the measures of that entire period in

respect to the matter in question, and it would be strange if it had

been otherwise, as the whole series of measures were to a very large

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 put the new system of government

under the constitution into full operation. Wise and complete as those

laws were, still some difficulties arose, as the several states had not

adopted the money unit of the United States, nor the money of account

prescribed by the twentieth section of the act establishing the mint.

Such embarrassments, however, were chiefly felt in the federal courts,

and they were not of long continuance, as the several states, one after

another, in pretty rapid succession, adopted the new system established

by congress both as to the money unit and the money of account.

Virginia, December 19th, 1792, re-enacted that section in the act of

congress without any material alteration, and New Hampshire, on the 20th

of February, 1794, passed a similar law. Massachusetts adopted the same

provision the next year, and so did Rhode Island and South Carolina.

Georgia concurred on the 22d of February, 1796, and New York on the 27th

of January, 1797, and all the other states adopted the same regulation

in the course of a few years. State concurrence was essential in those

particulars to the proper working of the new system, and it was

cheerfully accorded by the state legislatures without unnecessary delay.

Congress established as the money unit the coin mentioned in the

constitution, and 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 weights and measures is vested in congress

by the constitution in plain and unambiguous terms, and it was never

doubted, certainly not until within a recent period, that the power

conferred to coin money or to fabricate and stamp coins from gold and

silver, which in the constitutional sense is the same thing, together

with the power to determine the fineness, weight, and denominations of

the moneys coined, was intended to accomplish the same purpose as to

values. Indubitably it was so understood by congress in prescribing the

various regulations contained in the act establishing the national mint,

and it continued to be so understood by all branches of the

government--executive, legislative, and judicial--and by the whole

people of the United States, for the period of seventy years from the

passage of that act.

New regulations became necessary, and were passed in the meantime,

increasing slightly the proportion 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 coins 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 two

hundred and thirty-two grains of pure gold, or two hundred and

fifty-eight grains of standard. Three years later congress enacted that

the standard for both gold and silver coins should thereafter be such

that, of one thousand parts by weight, nine hundred should be of pure

metal and one hundred of alloy, by which the gross weight of the dollar

was reduced to four hundred and twelve and a half grains, but the

fineness of the coins was correspondingly increased, so that the money

unit remained of the same intrinsic value as under the original act.

Apply that rule to the eagle, and it will be seen that its gross weight

would be increased, as it was in fact by that act, but it continued to

contain, as under the preceding act, two hundred and thirty grains of

pure gold and no more, showing conclusively that no change was made in

the value of the coins.

Double eagles and gold dollars were authorized to be "struck and coined"

at the mint, by the act of March 3, 1849, but the standard established

for other gold coins was not changed, and the provision was that the new

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 to

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 more 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 payable to bearer at the treasury. They were to be

issued by the secretary of the treasury, and the further provision was

that the notes so issued should be lawful money and legal tender in

payment of all debts, public and private, within the United States,

except duties on imports and interest upon bonds and notes of the United

States, which the act provides "shall be paid in coin." Subsequent acts

passed for a similar purpose also except "certificates of indebtedness

and of deposit," but it will not be necessary to refer specially to the

other acts, as the history of that legislation is fully given in the

prior decision of this court upon the same subject.

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 are 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. _Griswold_, and that the court decided that an act of

congress making mere paper promises to pay dollars a legal tender in

payment of debts previously contracted is unconstitutional and void.

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 case 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_, which arose under the same act and in which he gave the

opinion. In that case the contract bore date prior to the passage of the

law, and he showed conclusively that it could never be necessary and

proper, within the meaning of the constitution, that congress, in

executing any of the express powers, should pass laws to compel a

creditor to accept paper promises as fulfilling a contract for the

payment of money expressed in dollars. Obviously the decision was

confined to the case before the court, but I am of the opinion that the

same rule must be applied whether the contract was made before or after

the passage of the law, as the contract for the payment of money,

expressed in dollars, is a contract to make the payment in such money as

the constitution recognizes and establishes as a standard of value.

Money values can no more be measured without a standard of value than

distances without a standard of extent, or quantities without a standard

of weights or measures, and it is as necessary that there should be a

money unit as that there should be a unit of extent, or of weight, or

quantity.

Credit currency, whether issued by the states or the United States, or

by private corporations or individuals, is not recognized by the

constitution as the standard of value, nor can it be made such by any

law which congress or the states can pass, as the 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. Values cannot be measured without a standard

any more than time or duration, or length, surface, or solidity, or

weight, gravity, or quantity. Something in every such case must be

adopted as a unit which bears a known relation to that which is to be

measured, as the dollar for values, the hour for time or duration, the

foot of twelve inches for length, the yard for cloth measure, the square

foot or yard for surface, the cubic foot for solidity, the gallon for

liquids, and the pound for weights; the pound avoirdupois being used in

most commercial transactions and the pound troy "for weighing gold and

silver and precious stones, except diamonds."

Unrestricted power "to fix the standard of weights and measures" is

vested in congress, but until recently congress had not enacted any

general regulations in execution of that power. Regulations upon the

subject existed in the states at the adoption of the constitution, the

same as those which prevailed at that time in the parent country, and

Judge Story says that the understanding was that those regulations

remained in full force, and that the states, until congress should

legislate, possessed the power to fix their own weights and measures.

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 sign which represents the

respective values of all other commodities." Such a power, that is the

power to coin money, he adds, is one of the ordinary prerogatives of

sovereignty, and is almost universally exercised in order to preserve a

proper circulation of good coin, of a known value, in the home market.

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 was 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 in the opinion

of the chief justice, this court decided in the case referred to, that

the act of congress making the notes in question "lawful money and a

legal tender in payment of debts" could not be vindicated as necessary

and proper means for carrying into effect the power vested in congress

to coin money and regulate the value thereof, or any other express power

vested in congress under the constitution. Unless that case, therefore,

is overruled, it is clear, in my judgment, that both the cases before

the court are controlled by that decision. Controversies determined by

the supreme court are finally and conclusively settled, as the decisions

are numerous that the court cannot review and reverse their own

judgments.

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. Under the regular

call of the docket, the case was first argued at the December term,

1867, but at the suggestion of the attorney general an order was passed

that it be re-argued, and the case was accordingly continued for that

purpose. Able counsel appeared at the next term, and it was again

elaborately argued on both sides. Four or five other cases were also on

the calendar, supposed at that time to involve the same constitutional

questions, and those cases were also argued, bringing to the aid of the

court an unusual array of counsel of great learning and eminent

abilities. Investigation and deliberation followed, authorities were

examined, and oft-repeated consultations among the justices ensued, and

the case was held under advisement as long as necessary to the fullest

examination by all the justices of the court, before the opinion of the

court was delivered. By law, the supreme court at that time consisted

of the chief justice and seven associate justices, the act of congress

having provided that no vacancy in the office of associate justice

should be filled until the number should be reduced to six. Five of the

number, including the chief justice, concurred in the opinion in that

case, and the judgment of the state court was affirmed, three of the

associate justices dissenting. Since that time one of the justices who

concurred in that opinion of the court has resigned, and congress having

increased the number of associate justices to eight, the two cases

before the court have been argued, and the result is that the opinion

delivered in the former case is overruled, five justices concurring in

the present opinion and four dissenting. Five justices concurred in the

first opinion, and five have overruled it. Persuaded that the first

opinion was right, for the reasons already assigned, it is not possible

that I should concur in the second, even if it were true that no other

reasons of any weight could be given in support of the judgment in the

first case, and that the conclusion there reached must stand or fall

without any other support. Many other reasons, however, may be invoked

to fortify that conclusion, equally persuasive and convincing with those

to which reference has been made.

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 bartered, one for another, when the division of labor was first

introduced, but gold and silver were adopted to serve the purpose of

exchange by the tacit concurrence of all nations at a very early period

in the history of commercial transactions. Commodities of various kinds

were used as money at different periods in different countries, but

experience soon showed the commercial nations that gold and silver

embodied the qualities desirable in money in a much greater degree than

any other known commodity or substance. Daily experience shows the truth

of that proposition, and supersedes the necessity of any remarks to

enforce it, as all admit that a commodity to serve as a standard of

value and a medium of exchange must be easily divisible into small

portions; that it must admit of being kept for an indefinite period

without deteriorating; that it must possess great value in small bulk,

and be capable of being easily transported from place to place; that a

given denomination in money should always be equal in weight and

quality, or fineness, to other pieces of money of the same denomination,

and that its value should be the same or as little subject to variation

as possible. Such qualities, all agree, are united in a much greater

degree in gold and silver than in any other known commodity, which was

as well known to the members of the convention who framed the

constitution as to any body of men since assembled, and intrusted to any

extent with the public affairs. They not only knew that the money of the

commercial world was gold and silver, but they also knew, from bitter

experience, that paper promises, whether issued by the states or the

United States, were utterly worthless as a standard of value for any

practical purpose.

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 from emitting bills of credit or making anything but gold and

silver coin a tender in payment of debts, and from the character of that

debate, and the vote on the amendment, it became apparent that paper

money had but few, if any friends in the convention. Article seven of

the draft of the constitution as reported to the convention, contained

the clause, "and emit bills on the credit of the United States,"

appended to the grant of power vested in congress to borrow money, and

it was on the motion to strike out that clause that the principal

discussion in respect to paper money took place. Mr. Madison inquired if

it would not be sufficient to prohibit the making such bills a tender,

as that would remove the temptation to emit them with unjust views.

Promissory notes, he said, in that shape, that is when not a tender,

"may in some emergencies be best." Some were willing to acquiesce in the

modification suggested by Mr. Madison, but Mr. Morris, who submitted the

motion, objected, insisting that if the motion prevailed there would

still be room left for the notes of a responsible minister, which, as he

said, "would do all the good without the mischief." Decided objections

were advanced by Mr. Ellsworth, who said he thought the moment a

favorable one "to shut and bar the door against paper money;" and others

expressed their opposition to the clause in equally decisive language,

even saying that they would sooner see the whole plan rejected than

retain the three words, "and emit bills." Suffice it to say, without

reproducing the discussion, that the motion prevailed--nine states to

two--and the clause was stricken out and no attempt was ever made to

restore it. Paper money, as legal tender, had few or no advocates in the

convention, and it never had more than one open advocate throughout the

period the constitution was under discussion, either in the convention

which framed it, or in the conventions of the states where it was

ratified. Virginia voted in the affirmative on the motion to strike out

that clause, Mr. Madison being satisfied that if the motion prevailed it

would not have the effect to disable the government from the use of

treasury notes, and being himself in favor of cutting "_off the pretext

for a paper currency, and particularly for making the bills a tender,

either for public or private debts_." When the draft for the

constitution was reported the clause prohibiting the states from making

anything but gold and silver a tender in payment of debts contained an

exception, "in case congress consented," but the convention struck out

the exception and made the prohibition absolute, one of the members

remarking that it was a favorable moment to crush out paper money, and

all or nearly all of the convention seemed to concur in the sentiment.

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 but 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. Mr. Martin thought that the

states ought not to be totally deprived of the right to emit bills of

credit, but he says "that the convention was so smitten with the paper

money dread that they insisted that the prohibition should be absolute."

Currency is a word much more comprehensive than the word money, as it

may include bank bills 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 by which all other values are

expressed and discharged. Support to the proposition that the word

money, as employed in that clause, was intended to be used in the sense

here supposed is also derived from the language employed in certain

numbers of the Federalist, which, as is well known, were written and

published during the period the question whether the states would ratify

the constitution was pending in their several conventions. Such men as

the writers of those essays never could have employed such language if

they had entertained the remotest idea that congress possessed the power

to make paper promises a legal tender.

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 protection of its

external interests may create." He 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." 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 such emissions a tender in payment

of debts, either as a member of the convention which framed the

constitution or as the head of the treasury department. Treasury notes,

however, have repeatedly been authorized by congress, commencing with

the act of 30th of June, 1812, but it was never supposed before the time

when the several acts in question were passed that congress could make

such notes a legal tender in payment of debts. Such notes, it was

enacted, should be received in payment of all duties and taxes laid, and

in payment for public lands sold by the Federal authority. Provision was

also made in most or all of the acts that the secretary of the treasury,

with the approbation of the president, might cause treasury notes to be

issued, at the par value thereof, in payment of services, of supplies,

or of debts for which the United States were or might be answerable by

law, to such person or persons as should be _willing to accept the same_

in payment, but it never occurred to the legislators of that day that

such notes could be made a legal tender in discharge of such

indebtedness, or that the public creditor could be compelled to accept

them in payment of his just demands.

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. Paper currency, it may be said, was authorized by that

act, which is undoubtedly true; and it is also true that the bills or

notes of the bank were made receivable in all payments to the United

States, if the same were at the time payable on demand, but the act

provided that the corporation should not refuse, under a heavy penalty,

the payment in gold and silver, of any of its notes, bills, or

obligations, nor of any moneys received upon deposit in the bank or in

any of its offices of discount and deposit.

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.

Creditors may exact gold and silver or they may waive the right to

require such money, and accept credit currency, or commodities, other

than gold and silver, and the United States, as creditors, or in the

exercise of their express power to lay and collect taxes, duties,

imposts, and excises, may, if they see fit, accept the treasury notes or

bank bills in such payments as substitutes for the constitutional

currency. Further discussion of the proposition is unnecessary, as it is

plainly destitute of any merit whatever.

Resort was 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 a 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 is full to the

point that Hamilton, as well as Jefferson and Madison, was opposed to

paper emissions by the national authority.

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, held opinions utterly opposed to such a construction of the

constitution as would authorize congress to make paper promises a legal

tender as between debtor and creditor. Throughout that period the

doctrine of the court has been, and still is, unless the opinion of the

court just read constitutes an exception, that the government of the

United States, as ordained and established by the constitution, is a

government of enumerated powers; that all the powers not delegated to

the United States by the constitution, nor prohibited by it to the

states, are reserved to the states respectively or to the people; that

every power vested in the Federal government under the constitution is

in its nature sovereign, and that congress may pass all laws necessary

and proper to carry the same into execution, or, in other words, that

the power being sovereign includes, by force of the term, the requisite

means, fairly applicable to the attainment of the contemplated end,

which are not precluded by restrictions or exceptions expressed or

necessarily implied, and not contrary to the essential ends of political

society.

Definitions slightly different have been given by different jurists to

the words "necessary and 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 nullify another or

render another utterly nugatory. Circumstances made it necessary that

Mr. Hamilton should examine that phrase at a very early period after the

constitution was adopted, and the definition he gave to it is as

follows: "All the means requisite and fairly applicable to the

attainment of the end of such power which are not precluded by

restrictions and exceptions specified in the constitution, and not

contrary to the essential ends of political society." Twenty-five years

later the question was examined by the supreme court and authoritatively

settled, the chief justice giving the opinion. His words were: "Let the

end be legitimate, let it be within the scope of the constitution, and

all means which are appropriate, which are plainly adapted to that end,

and which are not prohibited but consistent with the letter and spirit

of the constitution, are constitutional."

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 congress to provide a permanent

national standard of value, 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 conceded it cannot be

shown that congress can so expand any other express power by implication

as to nullify or defeat the great purposes which the power to coin money

and establish a standard of value was intended to accomplish.

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 for 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

cannot 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 may 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 prohibited by the same clause which confers the power to

raise and support armies. By virtue of those grants of power congress

may erect forts and magazines, may construct navy-yards and dock-yards,

manufacture arms and munitions of war, and may establish depots and

other needful buildings for their preservation, but the congress cannot

take private property for that purpose without making compensation to

the owner, as the constitution provides that private property shall not

be taken for public use without just compensation.

Legislative power under the constitution can never be rightfully

extended to the exercise of a power 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 end, 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 war, to suppress insurrection, to raise and support armies,

to provide and maintain a navy, to borrow money, to pay the debts of the

Union, and to provide for the common defence and general welfare, as

grants of power conferred in separate clauses of the constitution.

Reference was then made in very appropriate terms to the exigencies of

the treasury during that period and the conclusion reached, though

expressed interrogatively, appears to be that the provision making the

notes a legal tender was a necessary and proper one as conducing

"towards the purpose of borrowing money, of paying debts, of raising

armies, of suppressing insurrection," or, as expressed in another part

of the same opinion, the provision was regarded as "necessary and proper

to enable the government to borrow money to carry on the war."

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

performed that office, even for a day, and it may be added that neither

legislative enactments nor judicial decisions can compel the commercial

world to accept paper emissions of any kind as the standard of value by

which all other values are to be measured. Nothing but money will in

fact perform that office, and it is clear that neither legislative

enactments nor judicial decisions can perform commercial

impossibilities. Commodities undoubtedly may be exchanged as matter of

barter, or the seller may accept paper promises instead of money, but it

is nevertheless true, as stated by Mr. Huskisson, that money is not only

the _common measure_ and _common representative_ of all other

commodities, but also the common and universal equivalent. Whoever buys,

gives, whoever sells, receives such a quantity of pure gold or silver as

is equivalent to the article bought or sold; or if he gives or receives

paper instead of money, he gives and receives that which is valuable

only as it stipulates the payment of a given quantity of gold or silver.

"Most unquestionably," said Mr. Webster, "there is no legal tender, and

there can be no legal tender, in this country, under the authority of

this government, or any other, but gold and silver. * * This is a

constitutional principle, perfectly plain and of the very highest

importance." He admitted that no such express prohibition was contained

in the constitution, and then proceeded to say: "As Congress has no

power granted to it in this respect but to coin money and to regulate

the value of foreign coins, _it clearly has no power to substitute

paper_ or anything else for coin as a tender in payment of debts and in

discharge of contracts," adding that "Congress has exercised the power

fully in both its branches. It has coined money and still coins it, it

has regulated the value of foreign coins and still regulates their

value. The legal tender, therefore, THE CONSTITUTIONAL STANDARD OF

VALUE, IS ESTABLISHED AND CANNOT BE OVERTHROWN." Beyond peradventure he

was of the opinion that gold and silver, at rates fixed by congress,

constituted the legal standard of value, and that neither congress nor

the states had authority to establish any other standard in its place.

Views equally decisive have been expressed by this court in a case where

the remarks were pertinent to the question presented for decision.

Certain questions were certified here which arose in the circuit court

in the trial of an indictment in which the defendant was charged with

having brought into the United States from a foreign place, with intent

to pass, utter, publish, and sell certain false, forged, and counterfeit

coins, made, forged, and counterfeited in the resemblance and similitude

of the coins struck at the mint. Doubts were raised at the trial whether

congress had the power to pass the law on which the indictment was

founded. Objection was made that the acts charged were only a fraud in

traffic, and, as such, were punishable, if at all, under the state law.

Responsive to that suggestion the court say that the provisions of the

section "appertain rather to the execution of an important trust

invested by the constitution, and to the obligation to fulfil that trust

on the part of the government, namely, the trust and the duty of

creating and maintaining _a uniform and pure metallic standard of value

throughout the Union_; that the power of coining money and of regulating

its value was delegated to congress by the constitution for the very

purpose of _creating and preserving the uniformity and purity of such a

standard of value_, and on account of the impossibility which was

foreseen of otherwise preventing the inequalities and the confusion

necessarily incident to the different views of policy which in different

communities would be brought to bear on this subject. The power to coin

money being thus given to congress, founded on public necessity, it must

carry with it the correlative power of protecting the creature and

object of that power." Appropriate suggestions follow as to the right of

the government to adopt measures to exclude counterfeits and prevent the

true coin from being substituted by others of no intrinsic value, and

the justice delivering the opinion then proceeds to say, that congress

"having emitted a circulating medium, _a standard of value indispensable

for the purposes of the community_ and for the action of the government

itself, the congress is accordingly authorized and bound in duty to

prevent its debasement and expulsion and the destruction of the general

confidence and convenience by the influx and substitution of a spurious

coin in lieu of the constitutional currency."

Equally decisive views were expressed by the court six years earlier, in

the case of _Gwin_ v. _Breedlove_, in which the opinion of the court was

delivered by the late Mr. Justice Catron, than whom no justice who ever

sat in the court was more opposed to the expression of an opinion on a

point not involved in the record.

No state shall coin money, emit bills of credit, or make anything but

gold and silver a tender in payment of debts. These prohibitions, said

Mr. Justice Washington, associated with the powers granted to congress

to coin money and regulate the value thereof and foreign coin, most

obviously constitute members of the same family, being upon the same

subject and governed by the same policy. This policy, said the learned

justice, was to provide and fix a uniform standard of value throughout

the United States, by which the commercial and other dealings between

the citizens thereof, or between them and foreigners, as well as the

moneyed transactions of the government, should be regulated. Language so

well chosen and so explicit cannot be misunderstood, and the views

expressed by Mr. Justice Johnson in the same case are even more

decisive. He said the prohibition in the constitution to make anything

but gold or silver coin a tender in payment of debts is _express and

universal_. The framers of the constitution regarded it as an evil to be

repelled without modification, and that they have therefore left nothing

to be inferred or deduced from construction on the subject.

Recorded as those opinions have been for forty-five years, and never

questioned, they are certainly entitled to much weight, especially as

the principles which are there laid down were subsequently affirmed in

two cases by the unanimous opinion of this court.

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_

may also be referred to as even more explicit and decisive to the same

conclusion than anything embodied in the other cases. He first

describes, in vivid colors, the general distress which followed the war

in which our independence was established. Paper money, he said, was

issued, worthless lands and other property of no use to the creditor

were made a tender in payment of debts, and the time of payment

stipulated in the contract was extended by law. Mischief to such an

extent was done, and so much more was apprehended, that general distrust

prevailed, and all confidence between man and man was destroyed. Special

reference was made to those grievances by the chief justice, because it

was insisted that the prohibition to pass laws impairing the obligation

of contracts ought to be confined by the court to matters of that

description, but the court was of a different opinion, and held that the

convention intended to establish a great principle, that contracts

should be inviolable, that the provision was intended "to prohibit the

use of any means by which the same mischief might be produced." He

admitted that that provision was not intended to prevent the issue of

paper money, as that evil was remedied and the practice prohibited by

the clause forbidding the states to "emit bills of credit," inserted in

the constitution expressly for that purpose, and he also admitted that

the prohibition to emit bills of credit was not intended to restrain the

states from enabling debtors to discharge their debts by the tender of

property of no real value to the creditor, "because for that subject

also particular provision is made" in the constitution; but he added,

"NOTHING BUT GOLD AND SILVER COIN CAN BE MADE A TENDER IN PAYMENT OF

DEBTS."

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 theory.