Power, as before remarked, was vested in the congress under the

confederation to borrow money and emit bills of credit, and history

shows that the power to emit such bills had been exercised, before the

convention which framed the constitution assembled, to an amount

exceeding $350,000,000. Still the draft of the constitution, as

reported, contained the words, "and to emit bills," appended to the

clause authorizing congress to borrow money. When that clause was

reached, says Mr. Martin, a motion was made to strike out the words, "to

emit _bills of credit_;" and his account of what followed affords the

most persuasive and convincing evidence that the convention, and nearly

every member of it, intended to put an end to the exercise of such a

power. Against the motion, he says, we urged that it would be improper

to deprive the congress of that power; that it would be a novelty

unprecedented to establish a government which should not have such

authority; that it was impossible to look forward into futurity so far

as to decide that events might not happen that would render the exercise

of such a power absolutely necessary, &c. But a majority of the

convention, he said, being wise beyond every event, and being willing to

risk any political evil rather than admit the idea of a paper emission

_in any possible case_, refused to trust the authority to a government

to which they were lavishing the most unlimited powers of taxation, and

to the mercy of which they were willing blindly to trust the liberty and

property of the citizens of every state in the Union, _and "they erased

that clause from the system_."

More forcible vindication of the action of the convention could hardly

be made than is expressed in the language of the Federalist, and the

authority of Judge Story warrants the statement that the language there

employed is "justified by almost every contemporary writer," and is

"attested in its truth by facts" beyond the influence of every attempt

at contradiction. Having adverted to those facts, the commentator

proceeds to say, "that the same reasons which show the necessity of

denying to the states the power of regulating coin, prove with equal

force that they ought not to be at liberty to substitute a paper medium

instead of coin."

Emissions of the kind were not declared by the Continental congress to

be a legal tender, but congress passed a resolution declaring that they

ought to be a tender in payment of all private and public debts, and

that a refusal to receive the tender ought to be an extinguishment of

the debt, and recommended the states to pass such laws. They even went

further, and declared that whoever should refuse to receive the paper as

gold or silver should be deemed an enemy to the public liberty; but our

commentator says that these measures of violence and terror, so far from

aiding the circulation of the paper, led on to still further

depreciation. New emissions followed and new measures were adopted to

give the paper credit by pledging the public faith for its redemption.

Effort followed effort in that direction, until the idea of redemption

at par was abandoned. Forty for one was offered, and the states were

required to report the bills under that regulation, but few of the old

bills were ever reported, and of course few only of the contemplated new

notes were issued, and the bills in a brief period ceased to circulate,

and in the course of that year quietly died in the hands of their

possessors.

Bills of credit were made a tender by the states, but all such, as well

as those issued by the congress, were dead in the hands of their

possessors before the convention assembled to frame the constitution.

Intelligent and impartial belief in the theory that such men, so

instructed, in framing a government for their posterity as well as for

themselves, would deliberately vest such a power, either in congress or

the states, as a part of their perpetual system, can never in my

judgment be secured in the face of the recorded evidences to the

contrary which the political and judicial history of our country

affords. Such evidence, so persuasive and convincing as it is, must

ultimately bring all to the conclusion that neither the congress nor the

states can make anything but gold or silver coin a tender in payment of

debts.

Exclusive power to coin money is certainly vested in congress, but "no

amount of reasoning can show that executing a promissory note and

ordering it to be taken in payment of public and private debts is a

species of coining money."

Complete refutation of such theory is also found in the dissenting

opinion in the former case, in which the justice who delivered the

opinion states that he is not able to deduce the power to pass the laws

in question from that clause of the constitution, and in which he

admits, without qualification, that the provision making such notes a

legal tender does undoubtedly impair the "obligation of contracts made

before its passage." Extended argument, therefore, to show that the acts

in question impair the obligation of contracts made before their passage

is unnecessary, but the admission stops short of the whole truth, as it

leaves the implication to be drawn that the obligation of subsequent

contracts is not impaired by such legislation. Contracts for the payment

of money, whether made before or after the passage of such a provision,

are contracts, if the promise is expressed in dollars, to pay the

specified amount in the money recognized and established by the

constitution as the standard of value, and any act of congress which in

theory compels the creditor to accept paper emissions, instead of the

money so recognized and established, impairs the obligation of such a

contract, no matter whether the contract was made before or after the

act compelling the creditor to accept such payment, as the constitution

in that respect is a part of the contract, and by its terms entitles the

creditor to demand payment in the medium which the constitution

recognizes and establishes as the standard of value.

Evidently the word dollar, as employed in the constitution, means the

money recognized and established in the express power vested in congress

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

framers of the constitution having borrowed and adopted the word as

used by the Continental congress in the ordinance of the 6th of July,

1785, and of the 8th August, 1786, in which it was enacted that the

money unit of the United States should be "one dollar," and that the

money of account should be dollars and fractions of dollars, as

subsequently provided in the ordinance establishing a mint.

Repeated decisions of this court, of recent date, have established the

rule that contracts to pay coined dollars can only be satisfied by the

payment of such money, which is precisely equivalent to a decision that

such notes as those described in the acts of congress in question are

not the money recognized and established by the constitution as the

standard of value, as the money so recognized and established, if the

contract is expressed in dollars, will satisfy any and every contract

between party and party. Beyond all question the cases cited recognize

"the fact accepted by all men throughout the world, that value is

inherent in the precious metals; that gold and silver are in themselves

values, and being such, and being in other respects best adapted to the

purpose, are _the only proper measures of value_; that these values are

determined by weight and purity, and that form and impress are simply

certificates of value, worthy of absolute reliance only because of the

known integrity and good faith of the government which" put them in

circulation.

When the intent of the parties as to the medium of payment is clearly

expressed in a contract, the court decide, in _Butler_ v. _Horwitz_,

above cited, that damages for the breach of it, whether made before or

since the enactment of these laws, may be properly assessed so as to

give effect to that intent, and no doubt is entertained that that rule

is correct. Parties may contract to accept payment in treasury notes, or

specific articles, or in bank bills, and if they do so they are bound to

accept the medium for which they contracted, provided the notes,

specific articles, or bills are tendered on the day the payment under

the contract becomes due, and it is clear that such a tender, if

seasonable and sufficient in amount, is a good defence to the action.

Decided cases also carry the doctrine much further, and hold, even where

the contract is payable in money and the promise is expressed in

dollars, that a tender of bank bills is a good tender if the party to

whom it was made placed his objections to receiving it wholly upon the

ground that the amount was not sufficient.

Grant all that, and still it is clear that where the contract is for the

payment of a certain sum of money, and the promise is expressed in

dollars, or in coined dollars, the promisee, if he sees fit, may

lawfully refuse to accept payment in any other medium than gold and

silver, made a legal tender by act of congress passed in pursuance of

that provision of the constitution which vests in congress the power to

coin money, regulate the value thereof and of foreign coin.

Foreign coin of gold and silver may be made a legal tender, as the power

to regulate the value thereof is vested in congress as well as the power

to regulate the value of the coins fabricated and stamped at the mint.

Opposed, as the new theory is, by such a body of evidence, covering the

whole period of our constitutional history, all tending to the opposite

conclusion, and unsupported as the theory is by a single historical

fact, entitled to any weight, it would seem that the advocates of the

theory ought to be able to give it a fixed domicile in the constitution,

or else be willing to abandon it as a theory without any solid

constitutional foundation. Vagrancy in that behalf, if conceded, is

certainly a very strong argument at this day, that the power does not

reside in the constitution at all, as if the fact were otherwise, the

period of eighty-five years which has elapsed since the constitution was

adopted is surely long enough to have enabled its advocates to discover

its locality and to be able to point out its home to those whose

researches have been less successful and whose conscientious convictions

lead them to the conclusion that, as applied to the constitution, it is

a myth without a habitation or a name.

Unless the power to enact such a provision can be referred to some one

or more of the express grants of power to congress, as the requisite

means, or as necessary and proper for carrying such express power or

powers into execution, it is usually conceded that the provision must be

regarded as unconstitutional, as it is not pretended that the

constitution contains any express grant of power authorizing such

legislation. Powers not granted cannot be exercised by congress, and

certainly all must agree that no powers are granted except what are

expressed or such as are fairly applicable as requisite means to attain

the end of a power which is granted, or, in other words, are necessary

and proper to carry those which are expressed into execution.

Pressed by these irrepealable rules of construction, as applied to the

constitution, those who maintain the affirmative of the question under

discussion are forced to submit a specification. Courts, in one or more

cases, have intimated that the power in question may be implied from the

express power to coin money, but inasmuch as no decided case is referred

to where the judgment of the court rests upon that ground, the

suggestion will be dismissed without further consideration, as one

involving a proposition too latitudinous to require refutation. Most of

the cases referred to attempt to deduce the power to make such paper

emissions a legal tender from the express power to borrow money, or from

the power to declare war, or from the two combined, as in the dissenting

opinion in the case which is now overruled.

Authority, it is conceded, exists in congress to pass laws providing for

the issue of treasury notes, based on the national credit, as necessary

and proper means for fulfilling the end of the express power to borrow

money, nor can it be doubted at this day, that such notes, when issued

by the proper authority, may lawfully circulate as credit currency, and

that they may, in that conventional character, be lawfully employed, if

the act authorizing their issue so provides, to pay duties, taxes, and

all the public exactions required to be paid into the national treasury.

Public creditors may also be paid in such currency by their own consent,

and they may be used in all other cases, where the payment in such notes

comports with the terms of the contract. Established usage founded upon

the practice of the government, often repeated, has sanctioned these

rules, until it may now be said that they are not open to controversy,

but the question in the cases before the court is whether the congress

may declare such notes to be lawful money, make them a legal tender, and

impart to such a currency the quality of being a standard of value, and

compel creditors to accept the payment of their debts in such a

currency as the equivalent of the money recognized and established by

the constitution as the standard of value by which the value of all

other commodities is to be measured. Financial measures, of various

kinds, for borrowing money to supply the wants of the treasury, beyond

the receipts from taxation and the sales of the public lands, have been

adopted by the government since the United States became an independent

nation. Subscriptions for a loan of twelve millions of dollars were, on

the 4th of August, 1790, directed to be opened at the treasury, to be

made payable in certificates issued for the debt according to their

specie value. Measures of the kind were repeated in rapid succession for

several years, and laws providing for loans in one form or another

appear to have been the preferred mode of borrowing money, until the

30th of June, 1812, when the first act was passed "to authorize the

issue of treasury notes".

Loans had been previously authorized in repeated instances, as will be

seen by the following references, to which many more might be added.

Earnest opposition was made to the passage of the first act of congress

authorizing the issue of treasury notes, but the measure prevailed, and

it may be remarked that the vote on the occasion was ever after regarded

as having settled the question as to the constitutionality of such an

act. Five millions of dollars were directed to be issued by that act,

and the secretary of the treasury, with the approbation of the

president, was empowered to cause such portion of the notes as he might

deem expedient to be issued at par "to such public creditors _or other

persons as may choose to receive such notes in payment_," it never

having occurred to any one that even a public creditor could be

compelled to receive such notes in payment except by his own consent.

Twenty other issues of such notes were authorized by congress in the

course of the fifty years next after the passage of that act and before

the passage of the acts making such notes a legal tender, and every one

of such prior acts, being twenty in all, contains either in express

words or by necessary implication, an equally decisive negation to the

new constitutional theory that congress can make paper emissions either

a standard of value or a legal tender. Superadded to the conceded fact

that the constitution contains no express words to support such a

theory, this long and unbroken usage, that treasury notes shall not be

constituted a standard of value nor be made a tender in payment of

debts, is entitled to great weight, and when taken in connection with

the persuasive and convincing evidence, derived from the published

proceedings of the convention, that the framers of the constitution

never intended to grant any such power, and from the recorded sentiments

of the great men whose arguments in favor of the reported draft procured

its ratification, and supported as that view is by the repeated

decisions of this court, and by the infallible rule of interpretation

that the language of one express power shall not be so expanded as to

nullify the force and effect of another express power in the same

instrument, it seems to me that it ought to be deemed final and

conclusive that congress cannot constitute such notes or any other paper

emissions a constitutional standard of value, or make them a legal

tender in payment of debts--especially as it covers the period of two

foreign wars, the creation of the second national bank, and the greatest

financial revulsions through which our country has ever passed.

Guided by the views expressed in the dissenting opinion in the former

case, it must be taken for granted that the legal tender feature in the

acts in question was placed emphatically, by those who enacted the

provision, upon the necessity of the measure to the further borrowing of

money and maintaining the army and navy, and such appears to be the

principal ground assumed in the present opinion of the court. Enough

also appears in some of the interrogative sentences of the dissenting

opinion to show that the learned justice who delivered it intended to

place the dissent very largely upon the same ground.

Nothing need be added, it would seem, to show that the power to make

such notes a standard of value and a legal tender cannot be derived from

the power to borrow money, without so expanding it by implication as to

nullify the power to coin money and regulate its value, nor without

extending the scope and operation of the power to borrow money to an

object never contemplated by the framers of the constitution; and if so,

then it only remains to inquire whether it may be implied from the

power to declare war, to raise and support armies, or to provide and

maintain a navy, or "to enable the government to borrow money to carry

on the war," as the phrase is in the dissenting opinion in the former

case.

Money is undoubtedly the sinews of war, but the power to raise money to

carry on war, under the constitution, is not an implied power, and

whoever adopts that theory commits a great constitutional error.

Congress may declare war and congress may appropriate all moneys in the

treasury to carry on the war, or congress may coin money for that

purpose, or borrow money to any amount for the same purpose, or congress

may lay and collect taxes, duties, imposts, and excises to replenish the

treasury, or may dispose of the public lands or other property belonging

to the United States, and may in fact, by the exercise of the express

powers of the constitution, command the whole wealth and substance of

the people to sustain the public credit and prosecute the war to a

successful termination. Two foreign wars were successfully conducted by

means derived from those sources, and it is not doubted that those

express powers will always enable congress to maintain the national

credit and defray the public expenses in every emergency which may

arise, even though the national independence should be assailed by the

combined forces of all the rest of the civilized world. All remarks,

therefore, in the nature of entreaty or appeal, in favor of an implied

power to fulfil the great purpose of national defence or to raise money

to prosecute a war, are a mere waste of words, as the most powerful and

comprehensive means to accomplish the purpose for which the appeal is

made are found in the express powers vested in congress to lay and

collect taxes, duties, imposts, and excises without limitation as to

amount, to borrow money also without limitation, and to coin money,

dispose of the public lands, and to appropriate all moneys in the public

treasury to that purpose.

Weighed in the light of these suggestions, as the question under

discussion should be, it is plain, not only that the exercise of such an

implied power is unnecessary to supply the sinews of war, but that the

framers of the constitution never intended to trust a matter of such

great and vital importance as that of raising means for the national

defence or for the prosecution of a war to any implication whatever, as

they had learned from bitter experience that the great weakness of the

confederation during the war for independence consisted in the want of

such express powers. Influenced by those considerations the framers of

the constitution not only authorized congress to lay and collect taxes,

duties, imposts, and excises to any and every extent, but also to coin

money and to borrow money without any limitation as to amount, showing

that the argument that to deny the implied power to make paper emissions

a legal tender will be to cripple the government, is a mere chimera,

without any solid constitutional foundation for its support.

Comprehensive, however, as the power of Federal taxation is, being

without limitation as to amount, still there are some restrictions as to

the manner of its exercise, and some exceptions as to the objects to

which it may be applied. Bills for raising revenue must originate in the

house of representatives; duties, imposts, and excises must be uniform

throughout the United States; direct taxes must be apportioned according

to numbers; regulations of commerce and revenue shall not give any

preference to the ports of one state over those of another; nor shall

vessels bound to or from one state be obliged to enter, clear, or pay

duties in another; nor shall any tax or duty be laid on articles

exported from any state.

Preparation for war may be made in peace, but neither the necessity for

such preparation nor the actual existence of war can have the effect to

abrogate or supersede those restrictions, or to empower congress to tax

the articles excepted from taxation by the constitution. Implied

exceptions also exist, limiting the power of federal taxation as well as

that of the states, and when an exception of that character is

ascertained the objects falling within it are as effectually shielded

from taxation as those falling within an express exception, for the

plain reason that the "government of the United States is acknowledged

by all to be one of enumerated powers," from which it necessarily

follows that powers not granted cannot be exercised.

Moneys may be raised by taxes, duties, imposts, and excises to carry on

war as well as to pay the public debt or to provide for the common

defence and general welfare, but no appropriation of money to that use

can be made for a period longer than two years, nor can congress, in

exercising the power to levy taxes for that purpose, or any other,

abrogate or supersede those restrictions, exceptions, and limitations,

as they are a part of the constitution, and as such are as obligatory in

war as in peace, as any other rule would subvert, in time of war, every

restriction, exception, limitation, and prohibition in the constitution,

and invest congress with unlimited power, even surpassing that possessed

by the British parliament.

Congress may also borrow money to carry on war, without limitation, and

in exercising that express power may issue treasury notes as the

requisite means for carrying the express power into execution, but

congress cannot constitute such notes a standard of value nor make them

a legal tender, neither in time of war nor in time of peace, for at

least two reasons, either of which is conclusive that the exercise of

such a power is not warranted by the constitution: (1.) Because the

published proceedings of the convention which adopted the constitution,

and of the state conventions which ratified it, show that those who

participated in those deliberations never intended to confer any such

power. (2.) Because such a power, if admitted to exist, would nullify

the effect and operation of the express power to coin money, regulate

the value thereof and of foreign coin; as it would substitute a paper

medium in the place of gold and silver coin, which in itself, as

compared with coin, possesses no value, is not money, either in the

constitutional or commercial sense, but only a promise to pay money, is

never worth par, and often much less, even as domestic exchange, and is

always fluctuating and never acknowledged either as a medium of exchange

or a standard of value in any foreign market known to American commerce.

Power to issue such notes, it is conceded, exists without limitation,

but the question is whether the framers of the constitution intended

that congress, in the exercise of that power or the power to borrow

money, whether in peace or war, should be empowered to constitute paper

emissions, of any kind, a standard of value, and make the same a legal

tender in payment of debts. Mere convenience, or even a financial

necessity in a single case, cannot be the test, but the question is,

What did the framers of the constitution intend at the time the

instrument was adopted and ratified?

Constitutional powers, of the kind last mentioned--that is, the power to

ordain a standard of value and to provide a circulating medium for a

legal tender--are subject to no mutations of any kind. They are the same

in peace and in war. What the grants of power meant when the

constitution was adopted and ratified they mean still, and their meaning

can never be changed except as described in the fifth article providing

for amendments, as the constitution "is a law for rulers and people,

equally in war and in peace, and covers with the shield of its

protection all classes of men and under all circumstances."

Delegated power ought never to be enlarged beyond the fair scope of its

terms, and that rule is emphatically applicable in the construction of

the constitution. Restrictions may at times be inconvenient, or even

embarrassing, but the power to remove the difficulty by amendment is

vested in the people, and if they do not exercise it, the presumption is

that the inconvenience is a less evil than the mischief to be

apprehended if the restriction should be removed and the power extended,

or that the existing inconvenience is the least of the two evils; and it

should never be forgotten that the government ordained and established

by the constitution is a government "of limited and enumerated powers,"

and that to depart from the true import and meaning of those powers is

to establish a new constitution or to do for the people what they have

not chosen to do for themselves, and to usurp the functions of a

legislator and desert those of an expounder of the law. Arguments drawn

from impolicy or inconvenience, says Judge Story, ought here to be of no

weight, as "the only sound principle is to declare _ita lex scripta

est_, to follow and to obey."

For these reasons I am of the opinion that the judgment in each of the

cases before the court should be reversed.

CHAPTER IV.

DISSENTING OPINION OF JUSTICE FIELD.

Whilst I agree with the chief justice in the views expressed in his

opinion in these cases, the great importance which I attach to the

question of legal tender induces me to present some further

considerations on the subject.

Nothing has been heard from counsel in these cases, and nothing from the

present majority of the court, which has created a doubt in my mind of

the correctness of the judgment rendered in the case of _Hepburn_ v.

_Griswold_, or of the conclusions expressed in the opinion of the

majority of the court as then constituted. That judgment was reached

only after repeated arguments were heard from able and eminent counsel,

and after every point raised on either side had been the subject of

extended deliberation.

The questions presented in that case were also involved in several other

cases, and had been elaborately argued in them. It is not extravagant to

say that no case has ever been decided by this court since its

organization, in which the questions presented were more fully argued or

more maturely considered. It was hoped that a judgment thus reached

would not be lightly disturbed. It was hoped that it had settled

forever, that under a constitution ordained, among other things, "to

establish justice," legislation giving to one person the right to

discharge his obligations to another by nominal instead of actual

fulfillment, could never be justified.

I shall not comment upon the causes which have led to a reversal of that

judgment. They are patent to every one. I will simply observe that the

chief justice and the associate justices, who constituted the majority

of the court when that judgment was rendered, still adhere to their

former convictions. To them the reasons for the original decision are

as cogent and convincing now as they were when that decision was

pronounced; and to them its justice, as applied to past contracts, is as

clear to-day as it was then.

In the cases now before us the questions stated, by order of the court,

for the argument of counsel, do not present with entire accuracy the

questions actually argued and decided. As stated, the questions are:

1st. Is the act of congress known as the legal tender act constitutional

as to contracts made before its passage? 2d. Is it valid as applicable

to transactions since its passage?

The act thus designated as the legal tender act is the act of congress

of February 25th, 1862, authorizing the issue of United States notes,

and providing for their redemption or funding, and for funding the

floating debt of the United States; and the questions, as stated, would

seem to draw into discussion the validity of the entire act; whereas,

the only questions intended for argument, and actually argued and

decided, relate--1st, to the validity of that provision of the act which

declares that these notes shall be a legal tender in payment of debts,

as applied to private debts and debts of the government contracted

previous to the passage of the act; and 2d, to the validity of the

provision as applied to similar contracts subsequently made. The case of

_Parker_ v. _Davis_ involves the consideration of the first question;

and the case of _Knox_ v. _Lee_ is supposed by a majority of the court

to present the second question.

No question was raised as to the validity of the provisions of the act

authorizing the issue of the notes, and making them receivable for dues

to the United States; nor do I perceive that any objection could justly

be made at this day to these provisions. The issue of the notes was a

proper exercise of the power to borrow money, which is granted to

congress without limitation. The extent to which the power may be

exercised depends, in all cases, upon the judgment of that body as to

the necessities of the government. The power to borrow includes the

power to give evidences of indebtedness and obligations of repayment.

Instruments of this character are among the securities of the United

States mentioned in the constitution. These securities are sometimes in

the form of certificates of indebtedness, but they may be issued in any

other form, and in such form and in such amounts as will fit them for

general circulation, and to that end may be made payable to the bearer

and transferable by delivery. The form of notes, varying in amounts to

suit the convenience or ability of the lender, has been found by

experience a convenient form, and the one best calculated to secure the

readiest acceptance and the largest loan. It has been the practice of

the government to use notes of this character in raising loans and

obtaining supplies from an early period in its history, their receipt by

third parties being in all cases optional.

In June, 1812, congress passed an act which provided for the issue of

treasury notes, and authorized the secretary of the treasury, with the

approbation of the president, "to borrow from time to time, not under

par, such sums" as the president might think expedient, "on the credit

of such notes."

In February, 1813, congress passed another act for the issue of treasury

notes, declaring "that the amount of money borrowed or obtained by

virtue of the notes" issued under its second section should be a part of

the money authorized to be borrowed under a previous act of the same

session. There are numerous other acts of a similar character on our

statute books. More than twenty, I believe, were passed previous to the

legal tender act.

In all of them the issue of the notes was authorized as a means of

borrowing money, or obtaining supplies, or paying the debts of the

United States, and in all of them the receipt of the notes by third

parties was purely voluntary. Thus, in the first act, of June, 1812, the

secretary of the treasury was authorized not only to borrow on the

notes, but to issue such notes as the president might think expedient

"in payment of supplies or debts due by the United States to such public

creditors or other persons" as might "_choose to receive such notes in

payment at par_." Similar provisions are found in all the acts except

where the notes are authorized simply to take up previous loans.

The issue of the notes for supplies purchased or services rendered at

the request of the United States is only giving their obligations for

an indebtedness thus incurred; and the same power which authorizes the

issue of notes for money must also authorize their issue for whatever is

received as an equivalent for money. The result to the United States is

the same as if the money were actually received for the notes and then

paid out for the supplies or services.

The notes issued under the act of congress of February 25th, 1862,

differ from the treasury notes authorized by the previous acts to which

I have referred in the fact that they do not bear interest and do not

designate on their face a period at which they shall be paid, features

which may affect their value in the market but do not change their

essential character. There cannot be, therefore, as already stated, any

just objection at this day to the issue of the notes, nor to their

adaptation in form for general circulation.

Nor can there be any objection to their being made receivable for dues

to the United States. Their receivability in this respect is only the

application to the demands of the government, and demands against it, of

the just principle which is applied to the demands of individuals

against each other, that cross-demands shall offset and satisfy each

other to the extent of their respective amounts. No rights of third

parties are in any respect affected by the application of the rule here,

and the purchasing and borrowing power of the notes are greatly

increased by making them thus receivable for the public dues. The

objection to the act does not lie in these features; it lies in the

provision which declares that the notes shall be "a legal tender in

payment of all debts, public and private," so far as that provision

applies to private debts, and debts owing by the United States.

In considering the validity and constitutionality of this provision, I

shall in the first place confine myself to the provision in its

application to private debts. Afterwards I shall have something to say

of the provision in its application to debts owing by the government.

In the discussions upon the subject of legal tender the advocates of the

measure do not agree as to the power in the constitution to which it

shall be referred; some placing it upon the power to borrow money, some

on the coining power, and some on what is termed a resulting power from

the general purposes of the government; and these discussions have been

accompanied by statements as to the effect of the measure, and the

consequences which must have followed had it been rejected, and which

will now occur if its validity be not sustained, which rest upon no

solid foundation, and are not calculated to aid the judgment in coming

to a just conclusion.

In what I have to say I shall endeavor to avoid any such general and

loose statements, and shall direct myself to an inquiry into the nature

of these powers to which the measure is referred, and the relation of

the measure to them.

Now if congress can, by its legislative declaration, make the notes of

the United States a legal tender in payment of private debts--that is,

can make them receivable against the will of the creditor in

satisfaction of debts due to him by third parties--its power in this

respect is not derived from its power to borrow money, under which the

notes were issued. That power is not different in its nature or

essential incidents from the power to borrow possessed by individuals,

and is not to receive a larger definition. Nor is it different from the

power often granted to public and private corporations. The grant, it is

true, is usually accompanied in these latter cases with limitations as

to the amount to be borrowed, and a designation of the objects to which

the money shall be applied--limitations which in no respect affect the

nature of the power. The terms "power to borrow money" have the same

meaning in all these cases, and not one meaning when used by

individuals, another when granted to corporations, and still a different

one when possessed by congress. They mean only a power to contract for a

loan of money upon considerations to be agreed between the parties. The

amount of the loan, the time of repayment, the interest it shall bear,

and the form in which the obligation shall be expressed are simply

matters of arrangement between the parties. They concern no one else. It

is no part or incident of a contract of this character that the rights

or interests of third parties, strangers to the matter, shall be in any

respect affected. The transaction is completed when the lender has

parted with his money, and the borrower has given his promise of

repayment at the time, and in the manner, and with the securities

stipulated between them.

As an inducement to the loan, and security for its repayment, the

borrower may of course pledge such property or revenues, and annex to

his promises such rights and privileges as he may possess. His

stipulations in this respect are necessarily limited to his own

property, rights, and privileges, and cannot extend to those of other

persons.

Now, whether a borrower--be the borrower an individual, a corporation,

or the government--can annex to the bonds, notes, or other evidences of

debt given for the money borrowed, any quality by which they will serve

as a means of satisfying the contracts of other parties, must

necessarily depend upon the question whether the borrower possesses any

right to interfere with such contracts, and determine how they shall be

satisfied. The right of the borrower in this respect rests upon no

different foundation than the right to interfere with any other property

of third parties. And if it will not be contended, as I think I may

assume it will not be, that the borrower possesses any right, in order

to make a loan, to interfere with the tangible and visible property of

third parties, I do not perceive how it can be contended that he has any

right to interfere with their property when it exists in the form of

contracts. A large part of the property of every commercial people

exists in that form, and the principle which excludes a stranger from

meddling with another's property which is visible and tangible, equally

excludes him from meddling with it when existing in the form of

contracts.

That an individual or corporation borrowing possesses no power to annex

to his evidences of indebtedness any quality by which the holder will be

enabled to change his contracts with third parties, strangers to the

loan, is admitted; but it is contended that congress possesses such

power because, in addition to the express power to borrow money, there

is a clause in the constitution which authorizes congress to make all

laws "necessary and proper" for the execution of the powers enumerated.

This clause neither augments nor diminishes the expressly designated

powers. It only states in terms what congress would equally have had the

right to do without its insertion in the constitution. It is a general

principle that a power to do a particular act includes the power to

adopt all the ordinary and appropriate means for its execution. "Had the

constitution," says Hamilton, in the Federalist, speaking of this

clause, "been silent on this head, there can be no doubt that all the

particular powers requisite as a means of executing the general powers

would have resulted to the government by unavoidable implication." No

axiom is more clearly established in law or in reason, that whenever the

end is required the means are authorized; whenever a general power to do

a thing is given, every particular power necessary for doing it is

included.

The subsidiary power existing without the clause in question, its

insertion in the constitution was no doubt intended, as observed by Mr.

Hamilton, to prevent "all cavilling refinements" in those who might

thereafter feel a disposition to curtail and evade the legitimate

authorities of the Union; and also, I may add, to indicate the true

sphere and limits of the implied powers.

But though the subsidiary power would have existed without this clause,

there would have been the same perpetually recurring question as now, as

to what laws are necessary and proper for the execution of the expressly

enumerated powers.

The particular clause in question has at different times undergone

elaborate discussions in congress, in cabinets, and in the courts. Its

meaning was much debated in the first congress upon the proposition to

incorporate a national bank, and afterwards in the cabinet of

Washington, when that measure was presented for his approval. Mr.

Jefferson, then secretary of state, and Mr. Hamilton, then secretary of

the treasury, differed widely in their construction of the clause, and

each gave his views in an elaborate opinion. Mr. Jefferson held that the

word "necessary" restricted the power of congress to the use of those

means, without which the grant would be nugatory, thus making necessary

equivalent to indispensable.

Mr. Hamilton favored a more liberal, and in my judgment, a more just

interpretation, and contended that the terms "necessary and proper"

meant no more than that the measures adopted must have an obvious

relation as a means to the end intended. "If the end," he said, "be

clearly comprehended within any of the specified powers, and if the

measure have an obvious relation to that end, and is not forbidden by

any particular provision of the constitution, it may safely be deemed to

come within the compass of the national authority." "There is also," he

added, "this further criterion which may materially assist the decision:

Does the proposed measure abridge a pre-existing right of any state, or

of any individual? If it does not, there is a strong presumption in

favor of its constitutionality; and slighter relations to any declared

object may be permitted to turn the scale." From the criterion thus

indicated it would seem that the distinguished statesman was of opinion

that a measure which did interfere with a pre-existing right of a state

or an individual would not be constitutional.

The interpretation given by Mr. Hamilton was substantially followed by

Chief Justice Marshall, in _McCulloch_ v. _the State of Maryland_, when,

speaking for the court, he said that if the end to be accomplished by

the legislation of congress be legitimate, and within the scope of the

constitution, "all the means which are appropriate, which are plainly

adapted to that end, and which are not prohibited, but are consistent

with the letter and spirit of the constitution, are constitutional." The

chief justice did not, it is true, in terms declare that legislation

which is not thus appropriate, and plainly adapted to a lawful end, is

unconstitutional, but such is the plain import of the argument advanced

by him; and that conclusion must also follow from the principle that,

when legislation of a particular character is specially authorized, the

opposite of such legislation is inhibited.

Tested by the rule given by Mr. Hamilton, or by the rule thus laid down

by this court through Mr. Chief Justice Marshall, the annexing of a

quality to the promises of the government for money borrowed, which will

enable the holder to use them as a means of satisfying the demands of

third parties, cannot be sustained as the exercise of an appropriate

means of borrowing. That is only appropriate which has some relation of

fitness to an end. Borrowing, as already stated, is a transaction by

which, on one side, the lender parts with his money, and on the other

the borrower agrees to repay it in such form and at such time as may be

stipulated. Though not a necessary part of the contract of borrowing, it

is usual for the borrower to offer securities for the repayment of the

loan. The fitness which would render a means appropriate to this

transaction thus considered must have respect to the terms which are

essential to the contract, or to the securities which the borrower may

furnish as an inducement to the loan. The quality of legal tender does

not touch the terms of the contract of borrowing, nor does it stand as a

security for the loan. A security supposes some right or interest in the

thing pledged, which is subject to the disposition of the borrower.

There has been much confusion on this subject from a failure to

distinguish between the adaptation of particular means to an end and the

effect, or supposed effect, of those means in producing results desired

by the government. The argument is stated thus: the object of borrowing

is to raise funds; the annexing of the quality of legal tender to the

notes of the government induces parties the more readily to loan upon

them; the result desired by the government--the acquisition of funds--is

thus accomplished; therefore, the annexing of the quality of legal

tender is an appropriate means to the execution of the power to borrow.

But it is evident that the same reasoning would justify, as appropriate

means to the execution of this power, any measures which would result in

obtaining the required funds. The annexing of a provision by which the

notes of the government should serve as a free ticket in the public

conveyances of the country, or for ingress into places of public

amusement, or which would entitle the holder to a percentage out of the

revenues of private corporations, or exempt his entire property, as well

as the notes themselves, from state and municipal taxation, would

produce a ready acceptance of the notes. But the advocate of the most

liberal construction would hardly pretend that these measures, or

similar measures touching the property of third parties, would be

appropriate as a means to the execution of the power to borrow. Indeed,

there is no invasion by government of the rights of third parties which

might not thus be sanctioned upon the pretence that its allowance to the

holder of the notes would lead to their ready acceptance and produce the

desired loan.

The actual effect of the quality of legal tender in inducing parties to

receive them was necessarily limited to the amount required by existing

debtors, who did not scruple to discharge with them their pre-existing

liabilities. For moneys desired from other parties, or supplies required

for the use of the army or navy, the provision added nothing to the

value of the notes. Their borrowing power or purchasing power depended,

by a general and a universal law of currency, not upon the legal tender

clause, but upon the confidence which the parties receiving the notes

had in their ultimate payment. Their exchangeable value was determined

by this confidence, and every person dealing in them advanced his money

and regulated his charges accordingly.

The inability of mere legislation to control this universal law of

currency is strikingly illustrated by the history of the bills of credit

issued by the Continental congress during our Revolutionary war. From

June, 1775, to March, 1780, these bills amounted to over $300,000,000.

Depreciation followed as a natural consequence, commencing in 1777, when

the issues only equalled $14,000,000. Previous to this time, in January,

1776, when the issues were only $5,000,000, congress had, by resolution,

declared that if any person should be "so lost to all virtue and regard

to his country" as to refuse to receive the bills in payment, he should,

on conviction thereof by the committee of the city, county, or district,

or, in case of appeal from their decision, by the assembly, convention,

council, or committee of safety of the colony where he resided, be

"deemed, published, and treated as an enemy of his country, and

precluded from all trade or intercourse with the inhabitants" of the

colonies.

And in January, 1777, when as yet the issues were only $14,000,000,

congress passed this remarkable resolution:

"_Resolved_, That all bills of credit emitted by authority of congress

ought to pass current in all payments, trade, and dealings in these

states, and be deemed in value equal to the same nominal sums in Spanish

milled dollars, and that whosoever shall offer, ask, or receive more in

the said bills for any gold or silver coins, bullion, or any other

species of money whatsoever, than the nominal sum or amount thereof in

Spanish milled dollars, or more in the said bills for any lands,

houses, goods, or commodities whatsoever than the same could be

purchased at of the same person or persons in gold, silver, or any other

species of money whatsoever, or shall offer to sell any goods or

commodities for gold or silver coins or any other species of money

whatsoever and refuse to sell the same for the said continental bills,

every such person ought to be deemed an enemy to the liberty of these

United States and to forfeit the value of the money so exchanged, or

house, land, or commodity so sold or offered for sale. And it is

recommended to the legislatures of the respective states to enact laws

inflicting such forfeitures and other penalties on offenders as

aforesaid as will prevent such pernicious practices. That it be

recommended to the legislatures of the United States to pass laws to

make the bills of credit issued by the congress a lawful tender in

payments of public and private debts, and a refusal thereof an

extinguishment of such debts; that debts payable in sterling money be

discharged with continental dollars at the rate of 4_s._ 6_d._ sterling

per dollar, and that in discharge of all other debts and contracts

continental dollars pass at the rate fixed by the respective states for

the value of Spanish milled dollars."

The several states promptly responded to the recommendations of congress

and made the bills a legal tender for debts and the refusal to receive

them an extinguishment of the debt.

Congress also issued, in September, 1779, a circular addressed to the

people on the subject, in which they showed that the United States would

be able to redeem the bills, and they repelled with indignation the

suggestion that there could be any violation of the public faith. "The

pride of America," said the address, "revolts from the idea; her

citizens know for what purposes these emissions were made, and have

repeatedly plighted their faith for the redemption of them; they are to

be found in every man's possession, and every man is interested in their

being redeemed; they must, therefore, entertain a high opinion of

American credulity who suppose the people capable of believing, on due

reflection, that all America will, against the faith, the honor, and the

interest of all America, be ever prevailed upon to countenance, support,

or permit so ruinous, so disgraceful a measure. We are convinced that

the efforts and arts of our enemies will not be wanting to draw us into

this humiliating and contemptible situation. Impelled by malice and the

suggestions of chagrin and disappointment at not being able to bend our

necks to the yoke, they will endeavor to force or seduce us to commit

this unpardonable sin in order to subject us to the punishment due to

it, and that we may thenceforth be a reproach and a by-word among the

nations. Apprised of these consequences, knowing the value of national

character, and impressed with a due sense of the immutable laws of

justice and honor, it is impossible that America should think without

horror of such an execrable deed."

Yet in spite of the noble sentiments contained in this address, which

bears the honored name of John Jay, then president of congress and

afterwards the first chief justice of this court, and in spite of legal

tender provisions and harsh penal statutes, the universal law of

currency prevailed. Depreciation followed until it became so great that

the very idea of redemption at par was abandoned.

Congress then proposed to take up the bills by issuing new bills on the

credit of the several states, guaranteed by the United States, not

exceeding one-twentieth of the amount of the old issue, the new bills to

draw interest and be redeemable in six years. But the scheme failed, and

the bills became, during 1780, of so little value that they ceased to

circulate and "quietly died," says the historian of the period, "in the

hands of their possessors."

And it is within the memory of all of us that during the late rebellion

the notes of the United States issued under the legal tender act rose in

value in the market as the successes of our arms gave evidence of an

early termination of the war, and that they fell in value with every

triumph of the Confederate forces. No legislation of congress declaring

these notes to be money instead of representatives of money or credit

could alter this result one jot or tittle. Men measured their value not

by congressional declaration, which could not alter the nature of

things, but by the confidence reposed in their ultimate payment.

Without the legal tender provision the notes would have circulated

equally well and answered all the purposes of government--the only

direct benefit resulting from that provision arising, as already stated,

from the ability it conferred upon unscrupulous debtors to discharge

with them previous obligations. The notes of state banks circulated

without possessing that quality and supplied a currency for the people

just so long as confidence in the ability of the banks to redeem the

notes continued. The notes issued by the national bank associations

during the war, under the authority of congress, amounting to

$300,000,000, which were never made a legal tender, circulated equally

well with the notes of the United States. Neither their utility nor

their circulation was diminished in any degree by the absence of a legal

tender quality. They rose and fell in the market under the same

influences and precisely to the same extent as the notes of the United

States, which possessed this quality.

It is foreign, however, to my argument, to discuss the utility of the

legal tender clause. The utility of a measure is not the subject of

judicial cognizance, nor, as already intimated, the test of its

constitutionality. But the relation of the measure as a means to an end,

authorized by the constitution, is a subject of such cognizance, and the

test of its constitutionality, when it is not prohibited by any specific

provision of that instrument, and is consistent with its letter and

spirit. "The degree," said Hamilton, "in which a measure is necessary,

can never be a test of the _legal right_ to adopt it. That must be a

matter of opinion, and can only be a test of expediency. The relation

between the means and the end, between the nature of a _means_ employed

toward the execution of the power and the _object_ of that power, must

be the criterion of unconstitutionality; not the more or less of

necessity or utility."

If this were not so, if congress could not only exercise, as it

undoubtedly may, unrestricted liberty of choice among the means which

are appropriate and plainly adapted to the execution of an express

power, but could also judge, without its conclusions being subject to

question in cases involving private rights, what means are thus

appropriate and adapted, our government would be, not what it was

intended to be, one of limited, but one of unlimited powers.

Of course congress must inquire in the first instance, and determine

for itself not only the expediency, but the fitness to the end intended,

of every measure adopted by its legislation. But the power of this

tribunal to revise these determinations in cases involving private

rights has been uniformly asserted, since the formation of the

constitution to this day, by the ablest statesmen and jurists of the

country.

I have thus dwelt at length upon the clause of the constitution

investing congress with the power to borrow money on the credit of the

United States, because it is under that power that the notes of the

United States were issued, and it is upon the supposed enhanced value

which the quality of legal tender gives to such notes, as the means of

borrowing, that the validity and constitutionality of the provision

annexing this quality are founded. It is true that, in the arguments of

counsel, and in the several opinions of different state courts, to which

our attention has been called, and in the dissenting opinion in

_Hepburn_ v. _Griswold_, reference is also made to other powers

possessed by congress, particularly to declare war, to suppress

insurrection, to raise and support armies, and to provide and maintain a

navy; all of which were called into exercise and severely taxed at the

time the legal tender act was passed. But it is evident that the notes

have no relation to these powers, or to any other powers of congress,

except as they furnish a convenient means for raising money for their

execution. The existence of the war only increased the urgency of the

government for funds. It did not add to its powers to raise such funds,

or change, in any respect, the nature of those powers or the

transactions which they authorized. If the power to engraft the quality

of legal tender upon the notes existed at all with congress, the

occasion, the extent, and the purpose of its exercise were mere matters

of legislative discretion; and the power may be equally exerted when a

loan is made to meet the ordinary expenses of government in time of

peace, as when vast sums are needed to raise armies and provide navies

in time of war. The wants of the government can never be the measure of

its powers.

The constitution has specifically designated the means by which funds

can be raised for the uses of the government, either in war or peace.

These are taxation, borrowing, coining, and the sale of its public

property. Congress is empowered to levy and collect taxes, duties,

imposts, and excises, to any extent which the public necessities may

require. Its power to borrow is equally unlimited. It can convert any

bullion it may possess into coin, and it can dispose of the public lands

and other property of the United States, or any part of such property.

The designation of these means exhausts the powers of congress on the

subject of raising money. The designation of the means is a negation of

all others, for the designation would be unnecessary and absurd if the

use of any and all means were permissible without it. These means

exclude a resort to forced loans, and to any compulsory interference

with the property of third persons, except by regular taxation in one of

the forms mentioned.

But this is not all. The power to "coin money" is, in my judgment,

inconsistent with and repugnant to the existence of a power to make

anything but coin a legal tender. To coin money is to mould metallic

substances having intrinsic value into certain forms convenient for

commerce, and to impress them with the stamp of the government

indicating their value. Coins are pieces of metal, of definite weight

and value, thus stamped by national authority. Such is the natural

import of the terms, "to coin money," and "coin;" and if there were any

doubt that this is their meaning in the constitution, it would be

removed by the language which immediately follows the grant of the

"power to coin," authorizing congress to regulate the value of the money

thus coined, and also "of foreign coin," and by the distinction made in

other clauses between coin and the obligations of the general government

and of the several states.

The power of regulation conferred is the power to determine the weight

and purity of the several coins struck, and their consequent relation to

the monetary unit which might be established by the authority of the

government--a power which can be exercised with reference to the

metallic coins of foreign countries, but which is incapable of execution

with reference to their obligations or securities.

Then, in the clause of the constitution immediately following,

authorizing congress "to provide for the punishment of counterfeiting

the securities and current coin of the United States," a distinction

between the obligations and coins of the general government is clearly

made. And in the tenth section, which forbids the states to "coin money,

emit bills of credit, and make anything but gold and silver coin a

tender in payment of debts," a like distinction is made between coin and

the obligations of the several states. The terms gold and silver, as

applied to the coin, exclude the possibility of any other conclusion.

Now, money, in the true sense of the term, is not only a medium of

exchange, but it is a standard of value by which all other values are

measured. Blackstone says, and Story repeats his language: "Money is a

universal medium or common standard, by a comparison with which the

value of all merchandise may be ascertained, or it is a sign which

represents the respective values of all commodities." Money being such

standard, its coins or pieces are necessarily a legal tender to the

amount of their respective values for all contracts or judgments payable

in money, without any legislative enactment to make them so. The

provisions in the different coinage acts that the coins to be struck

shall be such legal tender, are merely declaratory of their effect when

offered in payment, and are not essential to give them that character.

The power to coin money is, therefore, a power to fabricate coins out of

metal as money, and thus make them a legal tender for their declared

values as indicated by their stamp. If this be the true import and

meaning of the language used, it is difficult to see how congress can

make the paper of the government a legal tender. When the constitution

says that congress shall have the power to make metallic coins a legal

tender, it declares in effect that it shall make nothing else such

tender. The affirmative grant is here a negative of all other power over

the subject.

Besides this, there cannot well be two different standards of value, and

consequently two kinds of legal tender for the discharge of obligations

arising from the same transactions. The standard or tender of the lower

actual value would in such case inevitably exclude and supersede the

other, for no one would use the standard or tender of higher value when

his purpose could be equally well accomplished by the use of the other.

A practical illustration of the truth of this principle we have all seen

in the effect upon coin of the act of congress making the notes of the

United States a legal tender. It drove coin from general circulation,

and made it, like bullion, the subject of sale and barter in the market.

The inhibition upon the states to coin money and yet to make anything

but gold and silver coin a tender in payment of debts, must be read in

connection with the grant of the coinage power to congress. The two

provisions taken together indicate beyond question that the coins which

the national government was to fabricate; and the foreign coins, the

valuation of which it was to regulate, were to consist principally, if

not entirely, of gold and silver.

The framers of the constitution were considering the subject of money to

be used throughout the entire Union when these provisions were inserted,

and it is plain that they intended by them that metallic coins

fabricated by the national government, or adopted from abroad by its

authority, composed of the precious metals, should everywhere be the

standard and the only standard of value by which exchanges could be

regulated and payments made.

At that time gold and silver moulded into forms convenient for use and

stamped with their value by public authority, constituted, with the

exception of pieces of copper for small values, the money of the entire

civilized world. Indeed these metals divided up and thus stamped always

have constituted money with all people having any civilization, from the

earliest periods in the history of the world down to the present time.

It was with "four hundred shekels of silver, current money with the

merchant," that Abraham bought the field of Machpelah, nearly four

thousand years ago. This adoption of the precious metals as the subject

of coinage,--the material of money by all peoples in all ages of the

world,--has not been the result of any vagaries of fancy, but is

attributable to the fact that they of all metals alone possess the

properties which are essential to a circulating medium of uniform value.

"The circulating medium of a commercial community," says Mr. Webster,

"must be that which is also the circulating medium of other commercial

communities, or must be capable of being converted into that medium

without loss. It must also be able not only to pass in payments and

receipts among individuals of the same society and nation, but to adjust

and discharge the balance of exchanges between different nations. It

must be something which has a value abroad as well as at home, by which

foreign as well as domestic debts can be satisfied. The precious metals

alone answer these purposes. They alone, therefore, are money, and

whatever else is to perform the functions of money must be their

representative and capable of being turned into them at will. So long as

bank paper retains this quality it is a substitute for money. Divested

of this nothing can give it that character."

The statesmen who framed the constitution understood this principle as

well as it is understood in our day. They had seen in the experience of

the Revolutionary period the demoralizing tendency, the cruel injustice,

and the intolerable oppression of a paper currency not convertible on

demand into money, and forced into circulation by legal tender

provisions and penal enactments. When they therefore were constructing a

government for a country, which they could not fail to see was destined

to be a mighty empire, and have commercial relations with all nations, a

government which they believed was to endure for ages, they determined

to recognize in the fundamental law as the standard of value, that which

ever has been and always must be recognized by the world as the true

standard, and thus facilitate commerce, protect industry, establish

justice, and prevent the possibility of a recurrence of the evils which

they had experienced and the perpetration of the injustice which they

had witnessed. "We all know," says Mr. Webster, "that the establishment

of a sound and uniform currency was one of the greatest ends

contemplated in the adoption of the present constitution. If we could

now fully explore all the motives of those who framed and those who

supported that constitution, perhaps we should hardly find a more

powerful one than this."

And how the framers of the constitution endeavored to establish this

"sound and uniform currency" we have already seen in the clauses which

they adopted providing for a currency of gold and silver coins. Their

determination to sanction only a metallic currency is further evident

from the debates in the convention upon the proposition to authorize

congress to emit bills on the credit of the United States. By bills of

credit, as the terms were then understood, were meant paper issues,

intended to circulate through the community for its ordinary purposes as

money, bearing upon their face the promise of the government to pay the

sums specified thereon at a future day. The original draft contained a

clause giving congress power to "borrow money and emit bills on the

credit of the United States," and when the clause came up for

consideration, Mr. Morris moved to strike out the words "and emit bills

on the credit of the United States," observing that "if the United

States had credit, such bills would be unnecessary; if they had not,

unjust and useless." Mr. Madison inquired whether it would not be

"sufficient to prohibit the making them a legal tender." "This will

remove," he said, "the temptation to emit them with unjust views, and

promissory notes in that shape may in some emergencies be best." Mr.

Morris replied that striking out the words would still leave room for

"notes of a responsible minister," which would do "all the good without

the mischief." Mr. Gorham was for striking out the words without

inserting any prohibition. If the words stood, he said, they might

"suggest and lead to the measure," and that the power, so far as it was

necessary or safe, was "involved in that of borrowing." Mr. Mason said

he was unwilling "to tie the hands of congress," and thought congress

"would not have the power unless it were expressed." Mr. Ellsworth

thought it "a favorable moment to shut and bar the door against paper

money." "The mischiefs," he said, "of the various experiments which had

been made were now fresh in the public mind and had excited the disgust

of all the respectable part of America. By withholding the power from

the new government, more friends of influence would be gained to it than

by almost anything else. Paper money can in no case be necessary. Give

the government credit, and other resources will offer. The power may do

harm, never good." Mr. Wilson thought that "it would have a most

salutary influence on the credit of the United States to remove the

possibility of paper money." "This expedient," he said, "can never

succeed whilst its mischiefs are remembered, and as long as it can be

resorted to it will be a bar to other resources." Mr. Butler was urgent

for disarming the government of such a power, and remarked "that paper

was a legal tender in no country in Europe." Mr. Mason replied that if

there was no example in Europe there was none in which the government

was restrained on this head, and he was averse "to tying up the hands of

the legislature altogether." Mr. Langdon preferred to reject the whole

plan than retain the words.

Of those who participated in the debates, only one, Mr. Mercer,

expressed an opinion favorable to paper money, and none suggested that

if congress were allowed to issue the bills their acceptance should be

compulsory--that is, that they should be made a legal tender. But the

words were stricken out by a vote of nine states to two. Virginia voted

for the motion, and Mr. Madison has appended a note to the debates,

stating that her vote was occasioned by his acquiescence, and that he

"became satisfied that striking out the words would not disable the

government from the use of public notes, as far as they could be safe

and proper; and would only cut off the pretext for a _paper currency_

and particularly for making the bills _a tender_ either for public or

private debts."

If anything is manifest from these debates it is that the members of the

convention intended to withhold from congress the power to issue bills

to circulate as money--that is, to be receivable in compulsory payment,

or, in other words, having the quality of legal tender--and that the

express power to issue the bills was denied, under an apprehension that

if granted it would give a pretext to congress, under the idea of

declaring their effect, to annex to them that quality. The issue of

notes simply as a means of borrowing money, which of course would leave

them to be received at the option of parties, does not appear to have

been seriously questioned. The circulation of notes thus issued as a

voluntary currency and their receipt in that character in payment of

taxes, duties, and other public expenses, was not subject to the

objections urged.

I am aware of the rule that the opinions and intentions of individual

members of the convention, as expressed in its debates and proceedings,

are not to control the construction of the plain language of the

constitution or narrow down the powers which that instrument confers.

Members, it is said, who did not participate in the debate may have

entertained different views from those expressed. The several state

conventions to which the constitution was submitted may have differed

widely from each other and from its framers in their interpretation of

its clauses. We all know that opposite opinions on many points were

expressed in the conventions, and conflicting reasons were urged both

for the adoption and the rejection of that instrument. All this is very

true, but it does not apply in the present case, for on the subject now

under consideration there was everywhere, in the several state

conventions and in the discussions before the people, an entire

uniformity of opinion, so far as we have any record of its expression,

and that concurred with the intention of the convention, as disclosed by

its debates, that the constitution withheld from congress all power to

issue bills to circulate as money, meaning by that bills made receivable

in compulsory payment, or, in other words, having the quality of legal

tender. Every one appears to have understood that the power of making

paper issues a legal tender, by congress or by the states, was

absolutely and forever prohibited.

Mr. Luther Martin, a member of the convention, in his speech before the

Maryland legislature, as reported in his letter to that body, states the

arguments urged against depriving congress of the power to emit bills of

credit, and then says that a "majority of the convention, being wise

beyond every event, and being willing to risk any political evil rather

than admit the idea of a paper emission in any possible case, refused to

trust this authority to a government to which they were lavishing the

most unlimited powers of taxation and to the mercy of which they were

willing blindly to trust the liberty and property of the citizens of

every state in the Union, _and they erased that clause from the

system_."

Not only was this construction given to the constitution by its framers

and the people in their discussions at the time it was pending before

them, but until the passage of the act of 1862, a period of nearly

three-quarters of a century, the soundness of this construction was

never called in question by any legislation of congress or the opinion

of any judicial tribunal. Numerous acts, as already stated, were passed

during this period, authorizing the issue of notes for the purpose of

raising funds or obtaining supplies, but in none of them was the

acceptance of the notes made compulsory. Only one instance have I been

able to find in the history of congressional proceedings where it was

even suggested that it was within the competency of congress to annex to

the notes the quality of legal tender, and this occurred in 1814. The

government was then greatly embarrassed from the want of funds to

continue the war existing with Great Britain, and a member from Georgia

introduced into the house of representatives several resolutions

directing an inquiry into the expediency of authorizing the secretary of

the treasury to issue notes convenient for circulation and making

provision for the purchase of supplies in each state. Among the

resolutions was one declaring that the notes to be issued should be a

legal tender for debts due or subsequently becoming due between citizens

of the United States and between citizens and foreigners. The house

agreed to consider all the resolutions but the one containing the legal

tender provision. That it refused to consider by a vote of more than two

to one.

As until the act of 1862 there was no legislation making the acceptance

of notes issued on the credit of the United States compulsory, the

construction of the clause of the constitution containing the grant of

the coinage power never came directly before this court for

consideration, and the attention of the court was only incidentally

drawn to it. But whenever the court spoke on the subject, even

incidentally, its voice was in entire harmony with that of the

convention.

Thus, in _Gwin_ v. _Breedlove_, where a marshal of Mississippi,

commanded to collect a certain amount of dollars on execution, received

the amount in bank notes, it was held that he was liable to the

plaintiff in gold and silver. "By the constitution of the United

States," said the court, "gold or silver coin made current by law can

only be tendered in payment of debts."

And in the case of the _United States_ v. _Marigold_, where the question

arose whether congress had power to enact certain provisions of law for

the punishment of persons bringing into the United States counterfeit

coin with intent to pass it, the court said: These provisions "appertain

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. The power of

coining money and of 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, and on account of the impossibility which was

foreseen of otherwise preventing the inequalities and the confusion

necessarily incident to 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."

It is difficult to perceive how the trust and duty here designated, of

"creating and maintaining a uniform and metallic standard of value

throughout the Union," is discharged, when another standard of lower

value and fluctuating character is authorized by law, which necessarily

operates to drive the first from circulation.

In addition to all the weight of opinion I have mentioned we have, to

the same purport, from the adoption of the constitution up to the

passage of the act of 1862, the united testimony of the leading

statesmen and jurists of the country. Of all the men who, during that

period, participated with any distinction in the councils of the nation,

not one can be named who ever asserted any different power in congress

than what I have mentioned. As observed by the chief justice, statesmen

who disagreed widely on other points agreed on this.

Mr. Webster, who has always been regarded by a large portion of his

countrymen as one of the ablest and most enlightened expounders of the

constitution, did not seem to think there was any doubt on the subject,

although he belonged to the class who advocated the largest exercise of

powers by the general government. From his first entrance into public

life, in 1812, he gave great consideration to the subject of the

currency, and in an elaborate speech in the senate, in 1836, he said:

"Currency, in a large and perhaps just sense, includes not only gold and

silver and bank bills, but bills of exchange also. It may include all

that adjusts, exchanges, and settles balances in the operations of trade

and business; but if we understand by currency the legal money of the

county, and that which constitutes a lawful tender for debts, and is the

statute measure of value, then undoubtedly nothing is included but gold

and silver. 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

own mints or foreign coins, at rates regulated by congress. This is a

constitutional principle perfectly plain, and of the very highest

importance. The states are expressly 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 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. Congress has exercised this 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. To overthrow it would shake the whole system."

If, now, we consider the history of the times when the constitution was

adopted; the intentions of the framers of that instrument, as shown in

their debates; the contemporaneous exposition of the coinage power in

the state conventions assembled to consider the constitution, and in the

public discussions before the people; the natural meaning of the terms

used; the nature of the constitution itself as creating a government of

enumerated powers; the legislative exposition of nearly three-quarters

of a century; the opinions of judicial tribunals, and the recorded

utterances of statesmen, jurists, and commentators, it would seem

impossible to doubt that the only standard of value authorized by the

constitution was to consist of metallic coins struck or regulated by the

direction of congress, and that the power to establish any other

standard was denied by that instrument.

There are other considerations besides those I have stated, which are

equally convincing against the constitutionality of the legal tender

provision of the act of February 25th, 1862, so far as it applies to

private debts and debts by the government contracted previous to its

passage. That provision operates directly to impair the obligation of

such contracts. In the dissenting opinion, in the case of _Hepburn_ v.

_Griswold_, this is admitted to be its operation, and the position is

taken that, while the constitution forbids the states to pass such laws,

it does not forbid congress to do this, and the power to establish a

uniform system of bankruptcy, which is expressly conferred, is mentioned

in support of the position. In some of the opinions of the state courts,

to which our attention has been directed, it is denied that the

provision in question impairs the obligation of previous contracts, it

being asserted that a contract to pay money is satisfied, according to

its meaning, by the payment of that which is money when the payment is

made, and that if the law does not interfere with this mode of

satisfaction, it does not impair the obligation of the contract. This

position is true so long as the term money represents the same thing in

both cases or their actual equivalents, but it is not true when the term

has different meanings. Money is a generic term, and contracts for money

are not made without a specification of the coins or denominations of

money, and the number of them intended, as eagles, dollars, or cents;

and it will not be pretended that a contract for a specified number of

eagles can be satisfied by a delivery of an equal number of dollars,

although both eagles and dollars are money; nor would it thus be

contended, though at the time the contract matured the legislature had

determined to call dollars eagles. Contracts are made for things, not

names or sounds, and the obligation of a contract arises from its terms

and the means which the law affords for its enforcement.

A law which changes the terms of the contract, either in the time or

mode of performance, or imposes new conditions, or dispenses with those

expressed, or authorizes for its satisfaction something different from

that provided, is a law which impairs its obligation, for such a law

relieves the parties from the moral duty of performing the original

stipulations of the contract, and it prevents their legal enforcement.

The notion that contracts for the payment of money stand upon any

different footing in this respect from other contracts appears to have

had its origin in certain old English cases, particularly that of mixed

money, which were decided upon the force of the prerogative of the king

with respect to coin, and have no weight as applied to powers possessed

by congress under our constitution. The language of Mr. Chief Justice

Marshall in _Faw_ v. _Marsteller_, which is cited in support of this

notion, can only be made to express concurrence with it when detached

from its context and read separated from the facts in reference to which

it was used.

It is obvious that the act of 1862 changes the terms of contracts for

the payment of money made previous to its passage, in every essential

particular. All such contracts had reference to metallic coins, struck

or regulated by congress, and composed principally of gold and silver,

which constituted the legal money of the country. The several coinage

acts had fixed the weight, purity, forms, impressions, and denominations

of these coins, and had provided that their value should be certified by

the form and impress which they received at the mint.

They had established the dollar as the money unit, and prescribed the

grains of silver it should contain, and the grains of gold which should

compose the different gold coins. Every dollar was therefore a piece of

gold or silver certified to be of a specified weight and purity, by its

form and impress. A contract to pay a specified number of dollars was

then a contract to deliver the designated number of pieces of gold or

silver of this character; and, by the laws of congress and of the

several states the delivery of such dollars could be enforced by the

holder.

The act of 1862 changes all this; it declares that gold or silver

dollars need not be delivered to the creditor according to the

stipulations of the contract; that they need not be delivered at all;

that promises of the United States, with which the creditor has had no

relations, to pay these dollars, at some uncertain future day, shall be

received in discharge of the contracts--in other words, that the holder

of such contracts shall take in substitution for them different

contracts with another party, less valuable to him, and surrender the

original.

Taking it, therefore, for granted that the law plainly impairs the

obligation of such contracts, I proceed to inquire whether it is for

that reason, subject to any constitutional objection. In the dissenting

opinion in _Hepburn_ v. _Griswold_, it is said, as already mentioned,

that the constitution does not forbid legislation impairing the

obligation of contracts.

It is true there is no provision in the constitution forbidding in

express terms such legislation. And it is also true that there are

express powers delegated to congress, the execution of which necessarily

operates to impair the obligation of contracts. It was the object of the

framers of that instrument to create a national government competent to

represent the entire country in its relations with foreign nations, and

to accomplish by its legislation measures of common interest to all the

people, which the several states, in their independent capacities, were

incapable of effecting, or if capable, the execution of which would be

attended with great difficulty and embarrassment. They, therefore,

clothed congress with all the powers essential to the successful

accomplishment of these ends, and carefully withheld the grant of all

other powers. Some of the powers granted, from their very nature,

interfere in their execution with contracts of parties. Thus war

suspends intercourse and commerce between citizens or subjects of

belligerent nations; it renders, during its continuance, the performance

of contracts previously made unlawful. These incidental consequences

were contemplated in the grant of the war power. So the regulation of

commerce and the imposition of duties may so affect the prices of

articles imported or manufactured as to essentially alter the value of

previous contracts respecting them; but this incidental consequence was

seen in the grant of the power over commerce and duties. There can be no

valid objection to laws passed in execution of express powers that

consequences like these follow incidentally from their execution. But it

is otherwise when such consequences do not follow incidentally, but are

directly enacted.

The only express authority for any legislation affecting the obligation

of contracts is found in the power to establish a uniform system of

bankruptcy, the direct object of which is to release insolvent debtors

from their contracts upon the surrender of their property. From this

express grant in the constitution I draw a very different conclusion

from that drawn in the dissenting opinion in _Hepburn_ v. _Griswold_,

and in the opinion of the majority of the court just delivered. To my

mind it is a strong argument that there is no general power in congress

to interfere with contracts--that a special grant was regarded as

essential to authorize a uniform system of bankruptcy. If such general

power existed, the delegation of an express power in the case of

bankrupts was unnecessary. As very justly observed by counsel, if this

sovereign power could be taken in any case without express grant, it

could be taken in connection with bankruptcies, which might be regarded

in some respects as a regulation of commerce made in the interest of

traders.

The grant of a limited power over the subject of contracts necessarily

implies that the framers of the constitution did not intend that

congress should exercise unlimited power, or any power less restricted.

The limitation designated is the measure of congressional power over the

subject. This follows from the nature of the instrument as one of

enumerated powers.

The doctrine that where a power is not expressly forbidden it may be

exercised, would change the whole character of our government. As I read

the writings of the great commentators and the decisions of this court,

the true doctrine is the exact reverse, that if a power is not in terms

granted, and is not necessary and proper for the exercise of a power

thus granted, it does not exist.

The position that congress possesses some undefined power to do anything

which it may deem expedient, as a resulting power from the general

purposes of the government, which is advanced in the opinion of the

majority, would of course settle the question under consideration

without difficulty, for it would end all controversy by changing our

government from one of enumerated powers to one resting in the

unrestrained will of congress.

"The government of the United States," says Mr. Chief Justice Marshall,

speaking for the court in _Martin_ v. _Hunter's Lessee_, "can claim no

powers which are not granted to it by the constitution, and the powers

actually granted must be such as are expressly given or given by

necessary implication." This implication, it is true, may follow from

the grant of several express powers as well as from one alone, but the

power implied must, in all cases, be subsidiary to the execution of the

powers expressed. The language of the constitution respecting the writ

of habeas corpus, declaring that it shall not be suspended unless, when

in cases of rebellion or invasion, the public safety may require it, is

cited as showing that the power to suspend such writ exists somewhere in

the constitution; and the adoption of the amendments is mentioned as

evidence that important powers were understood by the people who adopted

the constitution to have been created by it, which are not enumerated,

and are not included incidentally in any of those enumerated.

The answer to this position is found in the nature of the constitution,

as one of granted powers, as stated by Mr. Chief Justice Marshall. The

inhibition upon the exercise of a specified power does not warrant the

implication that, but for such inhibition, the power might have been

exercised. In the convention which framed the constitution a proposition

to appoint a committee to prepare a bill of rights was unanimously

rejected, and it has been always understood that its rejection was upon

the ground that such a bill would contain various exceptions to powers

not granted, and on this very account would afford a pretext for

asserting more than was granted. In the discussions before the people,

when the adoption of the constitution was pending, no objection was

urged with greater effect than this absence of a bill of rights, and in

one of the numbers of the Federalist, Mr. Hamilton endeavored to combat

the objection. After stating several reasons why such a bill was not

necessary, he said: "I go further and affirm that bills of rights, in

the sense and to the extent they are contended for, are not only

unnecessary in the proposed constitution, but would even be dangerous.

They would contain various exceptions to powers not granted, and on this

very account would afford a colorable pretext to claim more than were

granted. For why declare that things shall not be done which there is no

power to do? Why, for instance, should it be said that the liberty of

the press shall not be restrained when no power is given by which

restrictions may be imposed? I will not contend that such a provision

would confer a regulating power, but it is evident that it would furnish

to men disposed to usurp a plausible pretence for claiming that power.

They might urge, with a semblance of reason, that the constitution ought

not to be charged with the absurdity of providing against the abuse of

an authority which was not given, and that the provision against

restraining the liberty of the press afforded a clear implication that a

right to prescribe proper regulations concerning it was intended to be

vested in the national government. This may serve as a specimen of the

numerous handles which would be given to the doctrine of constructive

powers by the indulgence of an injudicious zeal for bills of right."

When the amendments were presented to the states for adoption they were

preceded by a preamble stating that the conventions of a number of the

states had, at the time of their adopting the constitution, expressed a

desire "in order to prevent _misconception or abuse_ of its powers, that

further declaratory and restrictive clauses should be added."

Now, will any one pretend that congress could have made a law respecting

an establishment of religion or prohibiting the free exercise thereof,

or abridging the freedom of speech, or the right of the people to

assemble and petition the government for a redress of grievances, had

not prohibitions upon the exercise of any such legislative power been

embodied in an amendment?

How truly did Hamilton say that had a bill of rights been inserted in

the constitution, it would have given a handle to the doctrine of

constructive powers. We have this day an illustration in the opinion of

the majority of the very claim of constructive power which he

apprehended, and it is the first instance, I believe, in the history of

this court, when the possession by congress of such constructive power

has been asserted.

The interference with contracts by the legislation of the several states

previous to the adoption of the constitution was the cause of great

oppression and injustice. "Not only," says Story, "was paper money

issued and declared to be a tender in payment of debts, but laws of

another character, well known under the appellation of tender laws,

appraisement laws, instalment laws, and suspension laws, were from time

to time enacted, which prostrated all private credit and all private

morals. By some of these laws the due payment of debts was suspended;

debts were, in violation of the very terms of the contract, authorized

to be paid by instalments at different periods; property of any sort,

however worthless, either real or personal, might be tendered by the

debtor in payment of his debts, and the creditor was compelled to take

the property of the debtor, which he might seize on execution, at an

appraisement wholly disproportionate to its known value. Such grievances

and oppressions and others of a like nature were the ordinary results of

legislation during the Revolutionary war and the intermediate period

down to the formation of the constitution. They entailed the most

enormous evils on the country and introduced a system of fraud,

chicanery, and profligacy, which destroyed all private confidence and

all industry and enterprise."