The New York Herald Newspaper, February 8, 1870, Page 4

——. 4 WEGAL TENDER ACT. THE GREAT FINANCIAL QUESTION. Decision of the United States Su- . preme Court. All Ontstanding Debts Contracted Before February 25, 1862, to be Paid ia Coin. The Legal Tender Act Justified as a Special Measure Duriag War Times. Longress Cannot Make Further Issues of Green- backs Legal Tenders, WasINGTON, Fev. 7, 1870. The following opinion was Gelivered tn the United States Supreme Court to-day by Chief Justice Chase:— Susan P, Hepburn and Henry A, Hepburn vs. Finry A, Griswowd, in Error to the Court of Ap» peals of the Slate of Kentucky.—Tiae question pre- sented for our determination by the record tn this case Is Whether or not the payee or assignee of a note mace before the 25th of February, 1562, is obliged by law to accept in payment United States notes equal iu Nominal amount to the sum due, ac- cording to tts terms, when tendered by the maker or other party bound to pay 1t, and this requires, in the rst place, 2 construction of that clause of the first section of the act of Congress passed on that day which declares the United States notes, the issue of which was authorized by the statute, to be a legal tender in paymeat of debts. The entire clause 13 In these words:—‘And such notes herein guthorized shail be receivable in payment of ali taxes, internal duties, excises, debts and demands of every kind due to the Uniied States, except duties on imports and demands against the United states, of every kind whatsoever, except for interest upon the bonds and notes, which shall be patd in coin; and shall also be lawful money and a legal tenderin payment of all debls, public or private, withim the United States, except duties on imports and interest as aforesaid (Twelith Uuited States Statutes, 345). This clause has already received mucu consideration here, and ‘this court has held that upon a sound construction neither taxes imposed by State legislation (Lane county va. Oregon, 7 Wallace, 71), nor demands upon contracts which stipulate. in terms for the payment or delivery of coin or bullion (Bronson vs. Rodes, 7 Wallace, Buuler vs. UWartwitz, 7 Wal- lace, 258) are tacluded by legislative intention under the description of debts, public apd private, We are now to determine whether this description em- braces debts contracted before as well as after the gate of the act, It is an established rule for the construction of statutes that the terms employed by the Legislature are not to receive an mterpretation whieh ficts with acknow'edged principles of justice and equity, if another sense, consonant with these principles, can be given to them. But thig rale cannoi prevail where the intent 13 clear, except in the scarcely supposabdle case where a statute sets at naught the plainest precepts of morabity and social obligation. Conrts must give effect to the clearly ascertained legislative interests, if uot repugnant to the fundamental law ordaine tin the constitation. he Tule just stated to the act under con- n there appears to be strong reason for con- word “depts” as having reference only todebis contracted subsequent to the enactment of the law; for no one will question that the United States notes, which the act makes a legal tender in payment are, essentially unlike in nature, and being irredeemable in coin are necessarily unlike In value, ‘The lawful money then in use and made a legal tender in payment consisted of gold and silver coin. The cnrrency in use under the act and declared by tteterms to be lawful money and a légai tenrer, 209: 2295 consists of notes or promises to pay 1m- pressed upon paper a in convenient form for circulatiua, and protected against counterfeiting by suitable devices and penalties. The former possess intrinsic value, determined by the weight and fineness of the metal; the jatter have no intriusic value, but @ purchasing vaiue, determined by the quantity in circnlation, by gen- eral consent to lis currency in payments, and by opimion as to the probabillty of redemption in coin, Both de in ai at Gegrees, a certain addi- tional value from their adaptation to circulation by the form and impress given to them under national authority, and from the acts making them respec- tively a lecal tender. Contracts for the payment of money made before the act of 1862 had reference to coined money, and could not be discharged, unless by consent, otherwisa than by the tender of the sum due Every such contract, therefore, was in legal unport a contract for the payment.of coin. There ia a well known law of currency that notes or promises w pay, unless made conveniently or promptly convertible into coin at the will of tie holder, can never, except under unusnal or abnor- mal conditions, be at par in circulation with cota, 1018 an equally well known law that depreciation of notes must increase with the increase of the quan- tity put i circulation and dimtuation of confidence In the ability or disposition toredeem, Theit ap- preci: u follows the reversal of these conditions, No act making them a legal tender can change ma- terially the operations of these laws. Their force has been strikingly exemplified 1 the history of the United States notes. Beginning with a very slight depreciation when first issued in March, 1562, they sunk in July, 1864, to tne rate of two dollars aud eighty-five cents fora dollar in gold and thea rose, uotii recently, when a dollar and twenty cents in paper became equal toa goid dollar. Admitting, then, that prior contracts are wituin the mtention of the act, and assuming that tne act is warranted by theconstitution, it follows that the Wolder of a promissory note made before the act for a thousand doilara, payable, a8 we have Just seen, according to the law aud according to the intent of;the parties, in coin, was required when depreciation reached its lowest point to accept in payment a thousand note dollars, although with the thousand coin duliars due under the contract he could have purchased on that day two thousand eight hundred and fifty such dollars. Every payment since the passage of the act of a note of cartier date has presented similar though less striking features, é Now, 1 certainly needs no argument to prove that an act c polling acceptance in satisfaction of any otter than stipulated payment alters arbitrarily the terms of the contract and impairs its obligation; and that the extent of impairment 1s in proportion to the tnequality of the payment accepted under the constraint of the law to the payment due under the contract. Nor does it need argument to prove that the practical operation of such ap act is contrary to justice and equality, it follows that no construction which attributes such practical operation to an act of Congress 1s to be favored, or, indeed, to be aduilived, if any other can be reconciled with the manifest intent of the Legislature, What, then, is that manifest intent? Are we at iinerty, upon @ fair and reasonable constructionof the act, to say that Congress meant that the word “debts,” used in the aet, should not tmolude debts contracted prior to its passage? In the case of Bronson vs. Rodes we thought ourselves warranted in holding that this word, used tn the statute, does not inciude obligations created by ex- press contract for the payment of gold and silver, whether coined or in bullion. ‘This conclusion rested, however, mainly on the terms of the act, which not only allow but require payments tn coin by or to the government, and may be fairly con- sidered independently of considerations belonging to the law of contracts for the delivery of specified Brticles as sanctioning special private contracts for like payments, without which, indeed, the provisions relating to government payments Could hardly nave practical effect, This considera- tion, however, does not apply to the matter now "NEW YORK HERALD, TUESDAY, FEBRU before us. There ts nothing in the terma of the ect which looks-to any difference in tts operations on Aifferent desoriptions of debts payable geueraily in Money—that 13 to say, in dollars and parts of @ dol- Jar. ‘These terms, on the contrary, in their obvious import, include equally all debts nob specially ex- pressed to be payable in gold or silver, whether arising under past contracts and already duo, or arising under such contracts and to become due at a future day, or arising and becoming due under sub- sequent contracts. A strict and literal construction, indeed, would, as suggested by Mr. Justice Story, in respect to the same word used tp the constitution (1 Story on Constitution, 921), Ils the word “debis’? to debts existing; and tf this construction cannot be accepted, because the limitations sanctioned by tt cannot be reconciled with the obvious scope and purpose of the act, it 1s certainly conclusive against any interpretation which will exclude existing debis from its operation, The same conclusion results irom the exception of interest on Joan’ and duties on imports, from the effect of the legal tender clause. This exception affords an irresistible implication that no description of debts, whenever contracted, can be withdrawn from vhe effect of the actif not included within the terms on the reasonable intent of the exception, And it is worthy of observation in this connection thatin all the aevates to which the ‘act gave occasion in Congress no suggestion Was ever made that the legal tender clause did not apply as fully to contracts made before 48 to con- tracts made after its passage, These consigerations seera to us conclusive, We do not tink ourselves ut liberty, wWereiore, to say tuat Congress did not intend ty make the notes autiorized by tta legal tender in payment of debts contracted before the passage of lve act. We are taus broaglt to the question Wietuer Congress has power to inake notes issued Uuuer its autuority @ legal lender im payment of debts which, when contracted, were payable 12 gold ana silver coin, ‘he delicacy aud Importance of this question have not been overrgted in the argument. ‘This court always approaches the consideration of questious of this nature reluctantly, and 113 constant rale of de- cision has Leen ald 18 that acts of Congress must be regarded us constitutional uimess clearly shown to be otherwise, But the constututton ts the funda. mental law of the United States. By 1b phe people veured a government, Goilned it3 powers, pre- d tueir Limits, aistribuied thea among the vent departments and directed in general the nner of tiwir exercise. No department of the goverament has avy OLber powers Luan tuose dele- gated to it by the people. Ail the logisiauve power granted by the consutation belongs to Congress, bot it has no legisiauve power which is not thus granted; apd the same obser- vation 1s equaily true in its application’ to tie executive and judicial powers granted respecirvé to the Presideat and the courts. All (hese powers diifer in kind, but not in source or lin- iauous; they all arise from the constitution and are lumnived by tts terms. 161g the function of the judi- ciary to mterpret and apply the law between parties aa they arise tor judgment, It can only declare what the law is, aud calorce by proper process the law thus declared. But in ascertaining the respect- ive righis of parties tt trequently becomes necessary to consult the constituuou; for tacre cau be no law Incouststent with the fundamental iaw. No enact- melt not in pursuance v1 the autaority couferred by it can create obligations or coufer rights, for such is the express declaration of the constitution itself in these word: ‘This constitution and the laws of the United States which shail ve made in pursuance thereof, and all treaties wade or which shal! be made under the authority of the United states, ‘aball ve the supreme law of the land, and the judges of every ‘State shall be bound thereby, anything m the constitution or any Stale to the contrary notwithstanding. Not every act of Congress, then, 18 to be regarded as the supreme law of the land; nor is it by every act of Lungiess that the judges are bouad. ils Character and tus force belong to such acts as are “made in pursuance of tue consutuilon.’”’ When, thereiore, a case arises for judicial determination and the ‘decision depends on the alieged inconsis- tency of a legislative provision with the funda- mental law 10 1s tbe plain duty of the Court to com- pare the act with the constitution, and I the former cannot, Upon @ lair construction, be reconciied with the jatter, to give effect to the constitution rather than the statute, ‘This seems So plain that it 1s Lmpos- sible to maker 1 plainer by argument. Wit be otherwise the constitulion is not the supreme law. It 18 neilher necessary nor userul im any case to inquire whether or not any act of Congress Was passed In pursuance of 14, ana /he oath which every member of this court is requixed to take, Luat ne “will aumunister justice Without respect to persous and do equal right vo the poor anu the meh, and fatchfully perform tne Guties INcUMvENL UpOR hii to the best OL Mis ability and understanuing, agroeably to the constitution and jaws of the United States,’ becomes an idle and unmeaming fori. ‘Vhe Case before us is one of private rights. The pluintif in the court below sougut to recover of tue deiendanss a certain sum expressed on the face of a promissory note. The deiendants insisted on the right, under ube act of February 25, 1862, wo acquit Luemselves of their obligation by tendering im pay- ment # sun nowinally equal in United states notes; t the note bad been execated before ine pas- sage of the uct, and the plainuff imsisted on iis right, ander the constitution, lo be paid te aimouut ane in gold and silver, @nd tt has not been, and eanuot ve, denied that the plainui was eu- tutied to judgment according to his ciaim, unless bound by 4 con-titational law to accept the notes ag cou. Tus (Wo questious Were directly presented:— Were tue dejendanis relieved by the act froin the obligauion assuaed in the contract? Could tue piantul be compelled by &@ judgment of the Court to receive tn puyiment a cureency of @ dliferent nature aud Value trou Laat Which Was ID Lhe contemplauon of tie purties When the contract was made? ‘The Cours ol Appeais resolves both quesions in the uegative, aud the delendanis seck the reversal Of thac Judymeut by writ of error. Gut r It becomes our ure, to determine Wiesher the act of , 1862, So far as It makes United States tender sn payment of debts contracted prior W its pascage, 1s Constitutional aud valid or otherwise. Under a deep sense of our obligation to perform Unis duty to the best of our ability and up. ‘stinding, We shall proceed to dispuse of the case presented by the record. We lave aireauy said, and it 18 generally if not universaily conceded, that the goverment of the UDiled States is one Of limited powers, and that no department possesses aby auchority not granted by the consuiucon, it 18 not necessary, however, order to prove the existence of a’ particular al thority, to siow @ particular aud express gran Jue design oi the constituuon was to estaviish & government’ competent to take direcvion and aduiinistration of the affairs of a great ballon, AU al Uie sane thine to mark by suMiciently definite Jines the splere of 1t8 operations. To this end 16 Was needful only W make express grants of general powers, coupled wiih @ furcper grant of Such incidental and auxiliary powers as might be Tequireu for tie exercise of tue powers expressly rauted. These powers are necessarily extensive. (has been found, indeed, th tae practical ediminis- tration of the government that # very large part, if not the largesi part, of its functious have been per- Jormed In Lie exercise Of powers tius linplied. But the extension ot power by tnplicauon was regarded Wi some apprehension by the wise men who framed and by the intelligent citizens who adopted the constitution. This apprehension is maaiiest in the terms by wich the grant of Incidental and aux- llary power 1s made. All powers of this nature are included under the description of “power to make ail laws Necessary and proper for carrying into execution the powers expressly granted to Congress, or vestea by the constitution in the government or in aay Of 118 departments or affairs.” The same ap- prenension 13 equally apparent io Lue tenth article of vhe amendineuts, Which declares that “the powers not delegated to the Lnited States by the constitu. uon, nor provioited by it to the States, are reserved to the Staves or the people.” We do not mean to gay thac either of these constitutional provisions ts to ba taken as restricting auy eXercise of power fairly Warranted by the legitimate derivation from one of the enumerated or oxpress powers. ‘The first was undoubtediy introduced vo excinde all doubt in re- spect to ‘the exisience of implied powers, while the wos ‘Necessary and — pro- per’? were intended to have a sense, tu use the words of Mr. Justice Story, “at once ad- mouilory and ciregiory, and to require that the means used ii the 6Xecution, of an express power sould be bona Jide appropriate to the end.” (1 Story on Constitution, 162, par. 1,25%.) The second sintended to have a like admonitory and directory sense, and to restrain the limited gov- ernment estabviished under the constitution from the exercise ol powers Dot clearly delegated or derived by just inference trom powers so deiegated, It has not heen matnvained in arguinent, nor, in- deed, Wouid any one, however sligntly conversant With consutivonal law, think of mamtaining tirat there ig in the constitution any express grant of legisiative power to make any descrtption of credit currency a legal tender in paymeut of debts We must uire, then, wiether é be done in ctie exercise of an implied pow The rale for determining whether a legislative rune ig be supported a3 an exercise of an pen: huplet te Was stated by Chief Justice Mar- shill, kz for the whole court, in the case of McUulloch versus the State of Maryland (4 Wheaton 421); and the statement then made has ever since been accepted as a correct exposition of the vonsti- tution. His words were these:—‘Let the end be legitimate, iet it be within the scope of the constitu- tion, and all means which are appropriate, which are plainly avapted to that end, which are not pro- hibited, but consistent with the letcer and spirit of the consutution are constitutional.” And tu another part of the same opinion the practical operation of ‘Uns rule was thus illustrated:—"should Congress in vie exegution of its powers adopt measures which are,prohibited by the constitution, or should Con- gress, Under the pretext of executing its powers, pass laws for the accomplishment of objects Lot entrusted to the governinent, it would be the painful duty of this tribuaal, should a case requiring #uch @ decision come before it, Lo way that such on Act Was notthe law of the land; but where the law Is Dot prohibited and is really calculated to effect any of the objects entrnsted to the government, to undertake here to inquire inte the degree of tts ne- Cessity would be to pass the line which circumscribes tho judicial ae and tread on legisiative grounds.” (ibid, 43 finally settled, so far as 43) j nr must be taken, then, as udiciai decisions Can settle anytur “ail laws necessary aud proper for. Saseatig tte exe ecutton” powers expressly granted or vested, havo in the consitution @ sense equivalent to that of the words “iaws not absolutely necessary, indeed, but Appropriate aud plalaly adapted +» comstitutional and 16 gitimate ends—laws not promibited, but con- sistent with the letter and spirit of tue Constiiuton— laws really calculated bo eifect the Objects entrusted to the government.”? ‘The question before us, then, resolves itself into this:—Is the clause whicd makes the United States notes a legal ce for debts contracted prior to Its enactmen law of the description stated in the rule? 1618 not doubted that the power to establish a standard of vaiue, by which ail other valuea may be measured—or, in other words, to determine what Shall pe lawiul money and @ legal tender—is in ita nature and of necessity a goverumental power, ib 1s tn all countries exercised by the government. In the United States, so far as it relates to tne precious metals, 1t1s vested in Congress by the grant of tne power tocoin money. But can & power to impart these quatities to notes or promises to pay money when offered in discharge of pre-existing debia pe derived from the colmage power or from any ogher power expressly given? It is certaimly not the same power as the power to coin money, nor ta It In @ny reasonavie, salisfactory sense an appropriate or plaiuly udopted Means to the exercise of thd power; nor is there more reason for saying that it 13 Impiled tn or incidental to tne power to regulate the value of comed money of the United States or of foreign coms, ‘Phis power of reguiation ty a power to determine the weight, purity, form aud impres- sion of the several coins, and thelr relation to each otuer, and the relations of foreign coins to the mon- etary unit of the United States. Nor is the power to miake notes legal tender the same as the power to issue notes to be used as currency. ‘The old Congress, under the Articles of Confederation, was clothed by express grant with the power tu emit buls of creait, which are, im fact, notes for cir. culation as currency, and yet that Congress Was pot clothed with power to make thelr bills legal tender on payment. And this court has re- cently teld that Congress, under ihe constitution, peekcanes the same power to emit bills or noves a8 incidental to other powers, though not denominated among Laese expreasiy granted, but tt wag expressly deciared at the sdme ume that this decision con- Ciuded notiing on tho question of legal tende: in- deed, we are not aware that 1 bas ever been claimed that the power to issue bills or notes has any iden- tity with the power to make them a legal tender; on the contrary, the whole history of the country reiutes that notion, The States have always been held to possess the power to authorize and regu- late whe issue of bills for circulation by banks or individuals, subject, as as been lately determined, to the control of Congress, for the purpose of establisuing aud securing & national currency, and yet the States are expressly prohibited by tue consittuuion (rom mak- ing anything but cold and silver coin a legal tencer. ‘This seems decisive on the point that the power to Isaue notes and che power tomake them @ legal tender are not the same power, and that they havo ho necessary connecuon with each oiher. But ib has been maintained im arguinent that une power to make United States noves # legal tender in pay- ment of ail debts 1s @ means apgronaiavely and plainty adapted to the execution of the power to carry on war, of the power to regulate commerce aud of the power to row money. If it 1s, aud 33 not prohibited nor inconsistent witn the letter or spirit of the consuUtutton, then ihe act which makes them such legal teuders must be held to be coustivuuonal. Let us, then, first inquire whether it is an appro- priate and plainly adapted means for carrylug on The affirmative argument may be thus Congress has power to declare and provide for carrying on war. Congress has also power to emit bills of credit, or circulating notes, receivable for government dues, and payable, so far, at least, as parties are willing to receive tueta, in discharge of government obligations. 1t will facilitate the use of such notes in disbursements to make them a legal tender in payment of existing debts; terelore Con: gress may make such notes a legal tender. It is dificult to say to what express power the authority to make notes @ legal tendor in payment of depts pre-existing In contracts may not be uplicid as inci- denta! upon the principles of this argument. is there any power which does not involve the use of money? And is there any doubt that Congress may issue and use bills of credit as money 18 the execution of any power? The power to establish Post Offices and post roads, for example, luvolves the collection and dispursement of a large sum. Is not the power to make uotes a legal tender as clearly incideatal to ums power as to the war power? ‘The answer to this question does not appear to us doubtful. The arguwent, therefore, seems to provetoo much. It carries the doctrine of impiled powers very tar be- yond any extent hitherto given it, It asserts that whatever in any degree promotes an end within tbe scope of a general power, wether in the correct sense of the word “appropriate” or not, may be done in the exercise of an impiled power. Can this proposition be mantamed? It is said that this i not @ question for the court deciding & cause, but ior the Congress exer- cising the power. But the decmive answer to this is that the admission Of a legisiative power to deieriuine finally what powers have the descriped relation a8 means to the execution of other powers plainly granted, and then to exercise absolutely and Without ilability to question in cases involving pri- vate rights, the powers thus determined to have that relation would completely change the nature of American government. It would convert the gov- ernment, Which the peopie ordained a3 a govern: ment ot limited powers, into a government oO! unlim- ited powers; 1% would obliterate every criterion which this court, speaking through the venerated Chief Justice, in the case already cited, established for the determination of the question whether leg s- lative acts are constitutional or unconstitutional. Undoubtedly among means appropriate, plainly adapted, really calculated, the Legisiature has un- restricted choice; but there cun be no Implied power to use meaus Not within this description Now; then, let itbe considered what has actually been done in the provision of national Currency. In July and August, 1561, aud February, 1562, the Issue Of sixty intilions in United States notes payable on de- mand was authorized. (12 U. S. Stacutes, 259, 413, 338.) ‘They were made receivable in payments, but were nov declared @ legal tender unit March, 1862 (12 U. 8, statutes, 370), When the amount in circnia- on had been greatiy reduced by receipt of cancel- lation. in 1862 and 1503 (12 U.S. Statutes, 345,,632, 709) the issue of four hundred and filty mui- loons it United Siates notes payable, not on demand, but in effect at the convenience of the government, was authored, sub- ject to certain restrictions. As to the fifty millions these notes were made receivable for the bonds of the national loaus for all debis due to or from the United States ex- cept duties on imports and interest on the public debt and wero also declared a legai tender. In March, 1863)(12 U.S. Statutes, 711), the issue of notes for parts of adollar was authorized to an amount not exceeding fifty mttitons of dollars. These noves were not declared @ legal tender, but were made redeemable under regulations to be pre- scribed by the Secretary of the Treasury. In beb- ruury, 1563 (12 U.S, Statates, 669), the issue of three hundred millions of dollars in notes of National Banking Associations was authoriz These notes were made receivable to the same extent as United States notes, and provisioa was made to secure their redemption; but tuey were not made a legal tender. ‘nese several descriptions of notes have since constituted, under the various acts of Congress, tue common currency of the United States. ‘The notes wich were not declared a legai tender have circulated with these which wore so declared, without unfavorable discrimination. it may be added asa part of the history that otuer issues bearing intereat at various rates Were autiio- rized and made a legal tender, except in redempuon of bank notes, jor face amount, exclusive of interest, Such were the one and two years five per cent notes and the three years compound inverest notes (13, United States Statutes, 218, 245). These notes never entered largely or permanently into the circulation, and there 1s no reason to think that their utility was Increased or diminished by the act which declared them legai tender for the face amount. They neea not be further considered here. They serve only to illustrate the tendency, remarked by all who have luvestigated the subject of paper money, to increase ‘the volume of irredeemable issues and to extend in- definitely the application of the quality of legal venders. Toat iv was carried no further during tho present civil war, and has been carried no iurther since, is due to circumstances tue consideration of which does not belong to this discussion. We recur, then, to the question undor considera- tion. No one questions the genera! constituuonal- ity,and not very many perviaps the generai ex- pediency, of the legislation by which @ note cur- rency has been authorized in recent years, The doubt is a8 to the power to declare a par- ticular class of these notes to bo aa legal tender im paymeatof pre-existing debts. The omy ground upon which this point is asserted ig not tat the issue of notes Was an appropriate aud plainiy adapted means for carrying oa the war, for that 1g admitted, but the making of them a legal vender to the extent mentioned was euch a means, Now We have seen that of all the notes issued those not declared a legal tender at all con- stiluted @ very large proportion, aad that they circulated freely and without discount. It may be said that their equality in circulauon and credit was due to the provision made by law for the redemption of this paper tn legal tender notes; but this provision, if ut ali useful in wis respect, was of triitng importance compared with tuat which made them recelvabie for government dues. Al! modern history testifies that 1m time of War, especially when taxes are augmented, large loans pegotiated and heavy disbursements Made, notes issued by the au- thority of the goverument and made receivabie for cues to the government, always obtain at first a Yeady circulation, and, even when not redecemabie in cola On demand, are as little aud usually less supject to depreciation than any other description of notes for the redemption of which no better provision 1s made. And the history of the legisiation under co: sideration is that 18 was upon this quality of receiya- Dillty, aud not upon the quality of legal tender, that reliance of circulation was originally placed, for the receivability clause appears to Lave been in the original dratt of the bill, while the legal tender clause seems to have been introduced at a later stage of its progress, These facts certainly are not with- Out weight as evidence thatall the useful purposes of the notes would have been fuily auswered, without making them a legal tender for pre-existing debis. It is dented, indeea, by eminent writers that the quality of legal tender adds anything ai all to the credit or usefulness of government notes. Tuey insist, on the’ contrary, thatit impairs both. How- ever this may be, {t mast be remembered that it is, as a means to an end, to be obtained by the action of tho government that the implied power of making notes # legai tender in all payments is claimed under the constitution. Now how far is the government heiped oy this means? Certainly it cannot obtain new supplies or services ata cheaper rate, for no one will take the notes {or more than they are worth at th 0 of the new contract. The price will-rise In the ratio of the depreciation, and this is all that could happen, MU the notes were not made # legal tender. But it may be said thatthe depreciation will be less to hin who takes them from the [elegy if the governmons wil pledge to him Its power to compel powers apd all other powera vouted by tila constl~ hig creditora to receive them at par in payments. ‘This (8, a8 We have seen, by NO means certain. If the quantity issued be excessive aud redemption un- certain and remote, great depreciation will take Place. If, on the other hand, the quantity is only adequate to the demands of business, and confidence im eariy fecomption s prong, ats acta. Will circulave freely whether tender or.not; but if it be admitted that some increase of availability 18 derived from making these notes a legal tender under new contracts, it by no means follows that avy appreciable advantage is gained by compelling creditors to re- celye them in satisfacuon of pre-existing debts. And there is abundant evidence that whatever benefit 18 posable {rom that compulsion to some in- dividuals, or to the government, 14 far more than onuraigheg by the logsea of property, the derange- ment of business, the fluctuations of currency and values, and the increase of prices to the people and (he governmeat, and the long train of evils which flow from the use of an irredeemable paper money. it ig true that these evils are not to be atuributed altogether to ta it @ legal vender; but this in- creases Lhese evils, It certainly wideus their extent and protracts their continuance. We are unable to persuade ourselves that am expedient of this sort 18 an appropriate and plainly adopted means for the execution of the power to declare and carry on war. If itadds nothing to the utility of the moves 1b cannot be upheld as @ means to the end in fargher- ance of which the notes are Issued; nor can It, in our judgment, be applied ag such LU, while facinating, In some degree, the circulation of the notes, It de- bases aad injurea the circulation of the currency in 1t8 proper use $0 A much greater degree. And Liese considerations seem to us equally applicabie to the power to regulate commerce and to borrow mouey. oth powers necessarily involve the use of money by the people and by the tai ares bus neither, a8 we thing, carries with {tas an appropriate and plainly adapted means to its exercise tho power Of making circulating notes wlegal vender iv pay- ment of pre-existing dovis, But there is another view which seems to us decisive. ‘fo whatever express power the Implied power in question may be referred in the rule stated by Chief Justice Mar- all, the words ‘appropriate,’ “plainly adapted,” really calculated,’ are qualified by the luuitation that the means most be not prohibited by, but con- sistent with the letter and spirit of, tue constitution. Noting so prohibited or inconststent can be re- garded as appropriate, or plainly adapted, or really calculated means to any end. Let us inquire, then, first, whether making bills of credit a legabtender to the extent indicated is con- sistent with the spirit of the constitution. Among the great cardinai purposes of that instrument no One 14 more conspicuous or More venerable thaa tho eslablisiment of justice, And what was intended by the establisnment of justice in the miuds of the people who ordained it ts happily hot ®& maticr of disputation. It is not leit to inference or conjecture, espectally in tts rela- tions to contracts. When the constitution was un- doeoing discussion in the Convention, the Congress of tue Confederation was enaged in tie considera- tion of ihe ordinance for the government of the territory northwest of the Ohto, the only territory subject at that time to its regulation and coatroi. BY this ordinance certain Suncameantal articles of compact .were establisned between the original Siates and the people aad States of the territory, Jor the purpose, to use its owa language, “of ex- tending the fundamental principles of civil and re- ligious liberty, whereon these republics—(the States united under the Confederation)—their laws and constitutions are erected.” Auong these funda- mental priacip'es was thls:—‘‘And in tne just preser- vauon of rights and property i is under- stood ai declared that no law ought ever to be made or have force in the said territory that shall in any manner whatever ioter- Tere wiih or affect private contracts or engagemenis bona jide and without trand, previously formed.” The same principle found more condensed expres- sion in that most valuable provision of the copstitu- tion of the United States, ever recognized as an etil- cient safeguard against intrigue, that no State shall pass any law impairing the obligation of contracts. lu is true that this pronibuton is not applied in terms to the government of the United States. Con- gress hus express power to enact bankrupt laws, und We do not say that a law made in the execution of any other express power which incidentally oniy impairs the Obiigauon of @ contract can be neld to be unconstitutional for that reason; but we think It ciear that those wo framed and those who agopted the constitution intended that the spirit of this prohibition should pervade the entire body of legis- lauion, aud that the justice which the constitution was ordained to eatablisi was not thought by them to be compatible with legislation of an opposite ten- dency. In otber words, we cannot doubt Ua a law Bot made in pursuance of an express power, Which necessarily @ud in its direct operation impairs the obligation of contracts, is inconsisient with the spirit of the constitution. Another provision found in the fifth amendment must be considered in this connection. We reier to that whicd ordains “that private property shail not be taken for puvlic use without compensation.” ‘Yhis provision is kindred in spirit to that which forbias legislation impairing the — obligation of contract but, unlike that, it 1s ad- dressed directly and soiciy to the national governnient, It does notin terms prohibit legisia- tion which appropriates the private property of one class Of Cilizeus tu the use Of anotuer class; bus if such property cannot be taken for the benefit of ali wishout compensation tt is aificult to undersiana how it can be 80 taken for the beneiit of a part with- out violating the spirit of the prohibition, But there is anotier provisioA in the same amendment which, 1m our judgment, cannot have its full and intended effect uniess construed ag a girect prodibition of the Jegislation which we have Been considering. It is that which declares that no person shall be deprived of iife, liberty or property without due process uf law. Jt ts not doubted that all the provisions of this ameudment operate directly in limitation and re- straint ol the legislative powers conferred by the constitution, The only question is whether an act whic compels all thoae who hoid centractg for tue payment of goid or silver money to accept in pay- meat @ currency of inferior value deprives such per- sons of properiy without due process of law. itis quite clear that, whaiever may be the operavion of such an act, due process of law makes No part ol it, Does it deprive auy person of proveriy? A very large proportion of the property of civilized men exiat8 In the tori of contracts. These contracts almost invariaoly stipulate for the payment of money, and we liave already seen that Contracts in the United States prior to the act under considera- tion jor the payment of money were contracts to pay the sums specified in gold wad silver coin, and it 1s beyoud douot that the holders of these contracts were and are as iully entitiea to the protection of this Constitutional provision as the hoiders of any other description of property. But it be bald that tue Loiders of no ription of property are protected by it trom legislation waich inciden- tally only impairs its value, and it may be urged in ilnstrauion tiat the holders of stock 1m a turnpike, w bridge or a mauufacwuriug corporation or an in- surance company or a bank Cannot, by authorizing similar Works Or corporaWous, reduce its price 11 the market; but all tis (oes not appear to meet the real dificulty. t In the cases mentioned the injury 1s purely con- tingent and incidental. In the case we are now con- sidering 1t is direct and Inevitable. If in the cases micnttoned the holder of the stock was required to convey it on demand to any one who should tink fit to offer half its value forit the unaiogy would be more obvious. No oue, probably, couid be found to contend tuat an act enlorcing the acceptance of fifty or seventy-five acres of jaad in gatistaction of @ contract to convey a@hundred would not come within the prohibition agatnst arbitrary privation of property. We confess ourselves unable to perceive any solid distinction between such an act and an act compelling ail cit- wens to accept in satisfaction of all contracts for money half or three-quarters or any other propor- tion less than the whole of the value actually due according to their terms, itis dificult te conceive What act would take private property without pro- cess of law if such act would not. We are obliged to conclude that an act making mere promises to pay dollars a legal tender in payment of debts pre- viously contracted, ig not a means “appropriate, plainly adapted, really calculated” to carry into effect any express power vested in Congress—that such an act is inconsistent with the spirit of the constitution, and that it is prohibited by the constitution. It is not surprising that amid the tumuit of the late civil war and under the in- fuence of apprehensions for the safety of the repub- Ue, almost universal, different views, never before entertained by ‘American atatesmen or jurists, were adopted by many. The time was not favorable to considerate redecilon upon the constitutional limits of legislation or executive authority. if power was assumed from patriotic motives the see found ready justiication tn patriotic hearts. ny who doubted yielded their doubts; many who did not doubt were silent; some who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the Views of the advocates of tho measure, Not & few who then tusisted upon its necessity or ac- gulesced in that view, have, since the return of peace, aud under the influence of calmer times, reconsid- ered thelr conciusions, and now concur in those waich we have just announced, ‘These concidsions seem te us to be fully sanc- tioned by the ieiter and spirit ol the constitution. We ure obliges, therefore, to hold that the defend- ans in error was not bound to receive from the plaintiffs the currency tendered to him in payment Of their note made before the passage of the act of February 25, 1862, It follows was the Judgment of the Court of Appeals, of Kentucky, must be al- tirmed, Dissenting Opinion. Susan P, Hepburn and Another, vs. Henry A. Griswold.—Mr. Justice Miller dissenting. The provisions of the constitution of the United States, which have direct roference to the function of legislation, may be dividea Into three primary Classes:—First, those which confer legislative powers on Uongress; second, those which prohibit the exercise of legislative powers by Congress; third, those which prohibit the States from exercising certain legislative powers. Tho powers conferred on Congress may be subdivided into the positive and the auxiliary, or, as they are more usually called, the express and implied power. As instances of the former class may be mentioned the power to borrow money, to raise and support armies and to coin money and regulate the value thereof. The implied or auxiliary powers of legisiation are founded largely on that general provision which closes the enumeration of powers granted in express terms by the declaration that Congress shall also have power to make all laws which shall be necessary and proper for carrying into execution the foregoing ARY 8, 1870.—TRIPLE SHERT. tution in tho government of the United States or in any department or officer thereof, The question which this court is called upon to consider is whether the authority to make the notes of the United States a lawful tender in payment of debta 1s to be found in Congress, under either of these classes of legislative elements of this any idea; that the exercise of sucns power would be an invasion of tue rights reserved to U may be as wellto say at the outset that this lsamong the subjects of legisiation forbidden to the States by the constitution. Amon the unequivocal utterances Of that instrument on this subject of lawful tenders 1s that which declares that no State shall coin money, emit bilis of credit or make soything but gold and silver a tender 1n payment of removing the whole matter irom the dominion of State legislation. upon subject, though tuere are, sul wer. As one of the uestion, and tn order to negative he States, it jebts, thus No such prohibition is placed power of Congress over this as we bave already , matters expressly forbidden to Vongress; ine but neither this of legal tender, nor the power to emit bills of credit, or to mpair the obligation of Congress 18 umong obvious that in probibiting this legal tender power them, though tt must to the States the attention of the convention must have been directed to the propriety of a limitation of the power of Congress. On the contrary, Congress is expreasiy authorized to com money, and to regulate the vaiue thereof and of foreign coin, and to puuish the counterfeiting of such coin and of the securities of the United States. Jt has been strongly argued by many able jurists that these latter clauses fairly construed confer the power to make the securities of the United States a lawful tender in payment of debts, them, stauding alone, a suiticient warrant for the exercise of tuis power, they are not without decided While | am not anle to see tn weighs when we come to consider the question of tue ex.sience of tis power as one necessary and broper tor carrying into execution other admitied powers of the government; for they show that so far a8 the framers of the constitution did go i granting express power over the lawful money of the coun- try ft was conided to Congress and not to the States; und it 18 uo Unreasonapie inference that If it stiouid be found necessary, in carryiug into effect some of the powers of the government essential to its successtul operation lo make its securities per- form the payment of debis, such iegisiation would be in harmony with the power over money granted tn express terms. It being conceded, then, that the power under consideration would not, if exercised by Congress, be an invasion of any rigut reserved to the United States, but one which they are forbidden to employ, and that it iy notin teruis elher granted or denied to Congress, can it be sustained as @ law necessary and proper, at the time it was enacted, for carrying into execution any of these powers that are ex- pressly granted eituer to Congress or to the govern- ment or to any department thereof? From the organization of the government under the present constitution there have beea from ume to tune attempts to limit the powers granied by that instrument by @® narrow and literal rulé of construction, and these nave been specially directed to the general clause which we have cited as the chief foundation of the auxiltary powers of the goverument. Iv has been said inat tuis clause, so iar from authorizing the use of any means wich eould not have been used wituout tt, 1a a restriction upon tue powers necessarily tmplica by an instrument so general in ita language. ‘The doctrine 18, that when an act of Congress is brought to the test of this clause of the constitution its ne- cessity must be abgolute and its adaptation to the conceded purpose unquestionable. Nowhere has his principle been met with more emphatic denial, or more satisiactory refutation than in this court. That emisont jurist and states- mau, Whose official career Of over thirty years as Chiet Jusiice commenced very soon after this con- Btitution was adopted, and whose decisions have done a8 much to fix Its meaning as those of any man living or dead, has given this particular clause the benefit of his fullest consideration, In the gase of the United States vs, Fisher (2 Cranch, 353), de- cided in 1804, the point in issue was the priority claimed for the United States as acreditor of a bank- rupt over all other creditors. Jt was argued mainly on the construction of the statutes; bul the power of Congress to such @ law was ulso denied, ‘The Cbief Justice said:—-It 1s claimed under the authority to make aillaws which shail be neceasary and proper to carry into execution the powers vested by the con- stitution m the government or in @y department thereot?’? In construing this clause 1t would be in- correct and wouid produce endiess diiliculties tf the opmion should be maintained that no law was authorized Walch was not iudispensably necessary to give effect to a specified power when various sys- tems might be adopted for that purpose. Jt might be said with respect to each that it was not neces- sary because the end might be attained by otaer means. Congress must possess the cuoice of means, and must be empowered to use aby means which are im fact conducive to the exerciwe of tne power granted by the constitution. It was ac- coraingly held that, under the authority to pay tue debts of the Union, it could pass a law giv- ing priority for its own debts 1n case of bankruptcy. But im the memorabie case of McCullorch, vs, The State of Maryland (4 Whalin, 316.) the most ox- haustive discussion of thus ciause is found in the Opinion of the saiue eminent expounder of the cou- stitution, That case Involved, as is well known, tue right of Cougress to establish the Bank o! the United States, and to authorize it to issue notes for circulation. It was conceded that the right to in- Corporate or create such & bank had no specitic grant lo any clause of the constitution, still less the right to authorize it to issue notes for circulation as money. Bul it wes argued that, as a measure neces- sary to enabie the government to collect, transfer and pay out its revenues, the organization of a bank with this function was withia tue power of Congress. Iu speaking of the trae meaning of the word “neces- sary” in this clause of the constitution, he says:— “Does it always impart an absolute physical neces- sity so strong that one thing to which another may be termed necessary cannot exist without it? We think it does not. “If reierence be had to ita use in the common affairs of the worid or in approved autnors, we find that tt frequently imparts ho more than that one thing 1s convenient, or useful, or es- sential to another. To employ means necessary to auend 1s genorally understood as empioying any meaus calculated to produce the end, and not as being Confined to those single means, without which the end would be unattainable.” J'he word ‘‘neces- sary” adiuiis, he says, of ali degrees of comparison. A thing may be necessary, very necessary, absolutely or inuispensably necessary. This word, then, hse others, i4 used I Various senses, and tn Its Construc- tion the subject, the context, the intention of the persou using them are to be takea into view. Lect this be done ti Uns case under consideration. The subject 1s the execution of those great powers ou Which the welfare of a nation essentially depends. it must have been the intention of those who gave these powers to insure as far as human prudence could msure their beneficlal execution. This could not be done by coniining the choice of means to sach narrow limits ag not to leave it in the power of Congress Lo adopt any Which might be appropriate aud which were conducive to the end. ‘This pro- vision 18 wade in @ constitution intended to endure for ages to come, and consequently to be adapted to various crises of human affairs. To have prescrived the means by which the government should tn all future thne exercise 11s powers would have been to change entirely the character of the instrument and give the properties of a legal code. 1¢ would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been but dimly, aud which can be best provided for as they occur. ‘fo have declared that the beat means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the Legislature of the capacity to avall itself of experience, to‘ exercise its reason and to accommodate its legislation to cir- cumstances. I have ¢| at unusual length these remarks of ChieI Justice Marsnall be- cause, though made half a century ago, tueir applicabluty to the circumstances under which Congress called to 1s ald the power of making the wecurities of the government a legal tender, or a means of successfully prosecuting a war which, ‘W.tuout such aid, seemed 1 Keiy to terminate ita ex- istence, and to borrow money which could in no oiher manner be borrowed, and to pay the debt of Millions due to its soldiers, Which could by no other Incans be paid, seems to be almost prophetic. If be bad had clearly before his mind the iuture history of wis country he could not have better characterized @ principle which would have Tendered tie power to carry on & war nugatory, which would have deprived Congress of the capacity to avail itself of experience, to exervise its reason and to accommodate {ts legislation to circumstances by the use of the most appropriate means of sup- porting the government in the crisis of its fate. Bus it is said that the claim under consideration is ad- monitory as to the use of implied powers and adds nothing te what would have been authorized with- out. The idea ts not new and is probably wtended for the same which was urged in the case of Mc- Culloch vs. the State of Maryland, namely, that in- stead of enlarging the powers conferred on Congresa, or providing for @ more liberal use of thei, 16 was designed as @ restriction upon the auxil- lary powers incidental to every express grant of powef im gencral terms. I wave already cited so fully from that case that I can only refer to It to say tuat this proposition is there cleariy stated and refuted. Does there exist, then, any power in Congress or in the government by express. grant to the execution of which this Legal Tender act Was necessary and proper in the sense nere de- ued and uader the circumstances of lis passage? ihe power to deciare war, to supress insurrection, to raise and support armies, to provide and imain- tain & navy, to borrow money on the credit of the Uniied states, to pay the debts of the Union and to provide Yor the common defence and general wel- Tare, are each ana all distinctly and specifically sete in separate clauses of tue constitution. @ were in the midst of a war which called ail these powers into exercise and taxed them severely—a war which, if we Were to take into account the increased capacit) for aestruction introduced by modern science an the corresponding Increase of its cost, brought Into operation powers of belligerency more went and more expensive than auy that the world has ever known, Ali the ordinary means of rendering efficient the several powers of Congress above mentioned had been employed to their utmost capacity, and with the spirit of the rebellion unbroken, with large armies in the fleld unpaid, with a ourrent expendi+ ture of two millions of doliars per day, the credit of the government nearly exhausted and the resources of taxation inadequate to even the im- terest on the public debt, Congress was called on to devise soine now means of borrowing money on the credit of the nation, for the result of the war was conceded by all thoughtful men to de- pend on the capacity of the government to raiso money th amounts previously unknown. The banks bad already loaned their means to the bins they had been compelled to suspend the payment o! specie on their own notes, The coin in the country, UW could all Wave been plaged wishin the contra) oF CE the Secretary of the Treasury, would not have made ® circulation suifclont ta @nuwer army pur- chases and army payments, to say nothing of the ordinary business the country, A general collapse of credit, of ments and of business seemed table,’ in which, faith in the ability of whe forreeerk Would wave been de- siroyed, the rebellion would have trumphea, the States would have been left divided and t IM impoverished. ‘The national governient Rohe have perished and with it the constitution which we fre called upon to construe with such nice and critical accuracy. That the Legal Tender act pre: vented these disastrous resulta, and that the logal touder clause Was necessary tO prevent them, | en- tertain no doubt, It furnished instantly o means of paying the soldiers the weld and filled the coffers of the commissary ang quartermaster, It furnished a medium /f, the pay- ment of private as well aa public debts at @ time when gold was being rapidly withdrawn from cir culation and the bank currency was becoming Wortuless; it furnished tue means to the capitalist of buying the bonds of the government; 1t suima- lated trade, revived the drooping euergies of the country and restored confidence to the publfe mind. The results. which followed the adoption of this measure are beyond dispute. No other adequate cause has ever been assigned for the revival of gov- erniment credil, the renowed activity of trade and the facility with which the government borrowed in two or three years, at reasonable rates of interest, mainly from ite own citizens, double the amount of money there was in t country. iuciuding coin, bank notes and the notes tssucd under the legal tender acts, It 18 now sald, how- ever, a8 (he calm retrospect of those events, iat ‘Treasury Aotes suitabie for circulation, as money bearing on tuetr iace the pledge of the United Stares for their ullimate payment in coin, would, if not equally effictent, have answered the requirements of the occasion without being made @ legal teader for debts, But what was needed was something moro (ban the credit of the gov- erninent. ‘that bad stretched to its utmoss -tension, and was clearly no longer suflicient in te slmple form of borrowing mouey, Is there any rea son to believe that the mere change In the form of the security given would have revived this sinking credit? On the contrary, all experience snows that & currency not redeemable promptly in coin, but depeadent on the credii of @ promissor whose re- sources were rapidly dimiushimg, while | liabilities are increasing, soo sinks to th dead level of wortuless paper. AS no man would have been compelled to take itin payment of debts, as 1t bore uo tuterest, ap Lis period of redemption would have been remote and uncertain, this imust have been the ineviiable fate of any extensive issue of such notes; but when by law they were made vo discharge tne functions of paying debts they bad @ perpetual credit or value equal to tue amount of ail the debts, public or private, in the country. If they were never redeemed (as they nev have been) they sti paid debts at their pur Value, aud for this pur- pose Were then, and have always been, eagerly sought by the people. ‘Yo say, then, that iis equaitty of legal tender was not necessary (0 taeir useluiness, seems to he unsupported by any sound view of tho situation; nor can any just Inference of tuat propo sition arise from @ comparison of tue legal tender notes with the bonds issued by the goverament about the same time, These ponds had a fixed period for their payment, and the Secretary of the ‘treasury declared wnat vney were payabie in gold. They vore interest which Waa payable semi-annuaily in goid by express terms on their face; and the customs dulies, waich by law could be paid in nothtng but gold, were secretly piedged to the payment this interest. They can afford no means of determining which would have been the fate of the Treasury notes designed to circulate as money, but which bore no fixed time of redemption and by law could pay no depts, aud bad no fund pledged for their re- demption, ‘The legal tender clauses of the statutes under con- sideration were placed emphatically by those who enacted thein upon their necessity to the further borrowing of money aud maintainmg the army and navy. It was done reluctantly and with Beste and only after the necessity had been demons! and had become imperative. Our statea- men had been trained in schools which looked upon such legislation with something more than distrust. The debates of ihe two houses of Congress show that on this necessity alone could tals clause of the bill nave been carried, and they algo prove, as 1 think, very clearly the existence of that neceaslty. The history of that gloomy time ts not to be readily forgotten by the lover of his country, ana will forever remain the full, clear and ample vindication of the exercise of this power by Congress, as its results have demonstrated the sagacity of those whe originated and carried through the measure. Certainly it sceins to the best judgment that 1 can bring to bezr upon the subject that this law was a necessity in the most stringent sense in which that word can be used, But, i we adopt the coastruc- tion oi Chief Justice Marshall and the full coi over which he presided—a construction which has never to this day been overruied or questioned in this court—how can we avoid this conclusion? Can it be said that this pro- vision did not conduce towards the purpose of bor- rowing money, of paying debts. of raising armies, of suppressing insurrection; or that it was not calcu- ted bo effect these ‘objects; or thatit was not useful nd essential to that end? Can it be said that this was not among the cboice means, np the ouly means, which were left to Congre: to carry on this war for national exiatence? Lets us compare, the present with o.her cases de- cided tn this court. if we can suy indirectly taat to declare, as in the case of the United States vs. Fisher, that the debt waichfa bankrupt owes tne gov- ernment shall have priority of payment over all other debts, is a necessary and proper law to enabie the government to pay its own debts, bow can we say nat the legal tender clause Was not necessary and proper tO enable the governmeit to boi row money to carry on- the wart creation of the Unitea States Bank, and especially the power grauted to it to issue notes for circulation a3 money, was stronuously resisted as without constitutional authority; but this Court held that a bank of issue was necessary in tho sonse of that word, as used In the constitution, to enable the government to collect, to transier and to pay out its revenues, was never claimed that the government could find no oiler means to do this, It conid’not then be denied, nor has it ever been, that other means more clearly within the competency of Congress existed, nor thas @ bank of deposit might possibly have answerea Without @ circulavion, But because that was the most fitiing, useful and effictent mode of doing what Congress way authorized to do, it was held to be necessary by this Court ‘The necessity m that case is much less apparent te me than in tne adoption of the Legal Tender clause. In the Veazil Bank va. Kenno, decided as the presené term, the court hela, after full considera- tion, that it was the privilege of Congress to furnish tothe country the currency to be used by it in tae transaction of business, whether this was done by Means O1 coln, Of tae notes oi the United States, or of banks created by Congress, and that as @ means of making this power of Congress effectual that body could make this currency exclusive by taxing out of existence any currency authorized by the State, It was said that having, in the exercise of undoubted constitutional power, undertaken to provide a cur- rency for the whole country, 1t cannot be questioned that Congress may constitutionally secure the bene- fit of it to the people by appropriate means. Which is the more appropriate aud effectual means of making the currency established by Congress useful, acceptable, perfect? The taxing all other currency out of existence, or giving to that furnished by the government the quality of lawful tender for debts? ‘The latter ia @ means directiy conducive to the end to be obtained—a means which attains the end more promptly and more periectly than any other means can do. The former is a re- mote and uncertain means in its effect, and is Mable to the serious objection that 1 intér-, feres with State legislation. If Oongress ca however, under its implied puwer, prote and foster this currency by such means as: destractive taxation on State pank circulation tt pels strange indeed if it cannot adopt the more propriate and the effective means of declarin: these notes of its own issus, for the redemption oj which its faith Is pledged, @ lawful tender in pay- ment of debts. But it 18 said that the law ts in con- flict with the spiris if not the letter of several provisions of the constitution.* Un- doubtedly it a impairing the obdliga- tion of contracis made before its passage, bus while the constitution forbids the States to pass such Jaws, it does noc forbid Congress. On ghe contrary, Congress 1s express!y authorized to establish a uni- form system of bankruptcy, the essence of which is to discharge debtors from the obligation of their contracts. And in pursuance of this power Con- gress nas three times passed such a law, which in every instance operated on contracts made before 1¢ was passed. Such a law is now in lorce, yet its con- sticutionality has never been questioned. How it can be in accordance with the spirit of the constitu- tion to destroy directly the creditors’ contract for the gake of the individual debtor, but, contrary to 1t3 spirit, to affect remotely its valne for the safety of the uation, tt 18 diMficult to perceive. 60 it 18 said that the provisions that private property sball not be taken for public use without "just Cet giants and that no person shall be deprived of life, liberty or property without due course of law, are opposed to tho acts under consideration. The argument is too fine for my per- ception by which the indirect.effect of a great public measure, in depreciating tue value of lands, stocks, bonds and otter contracts, rendérs such @ law invalid, in taking private property for publio use, or .as depriving the owner of 18 without due course of law. A declaration of war with a maritime power would thus be uaconstitu- tional, because the value of every ship abroad ta lessened twenty-five or thirty per cent and those at home almost as much, ‘Th@ abolition of the tartif on iron or sugar would in like manner destroy the furnaces and sink the capital employed in the man- ufacture of those articles; yet no states man, however warm &n_ advocate of high tariffs, has claimed that to abolish such duties would be unconstitutional, as taking private property. lf the principle be sound every successive issue of government bonds during the War Was void, because by increasing the public debs it made those already in private hands less vaina- dble. This whole argument of the injustice of the Jaw—an injustice which, if it ever existed, will be re- pented by now holding it void—and of its opposition to the spirit of the constitution 18 too abstract aad tutangible for application to courts of justice, aud ig above all dangerous, ag a ground on wiicii to de- clare the legisiation of Congress vold by the decision of acourt. It would authorize this court to enforce theoretical views of the geniusj of our yovernmens or Vague notions of the spirti of the constitution and of abstract justice by deciaring Vold jaws which did not square with them. It subsitiutes our ideas of policy for judicial construction on woae- fined code of ethics for the constivution and & court of justicg (or tac uatioual legilavuce, Upon we