Metropolitan Bank v. Van Dyck

The question presented for our determination in these actions is one of the gravest importance, and chai

We are all familiar with the fact, that the first system of a general or national government, formed by the colonies in this country, upon their separation from the crown of Great Britain, and assuming the position of independent states, was that of a confederation of the several states. “Articles of confederation and perpetual union ” were entered into between the several states; and the style of the confederacy was that of “ The United States of America.” Bach state retained its sovereignty, freedom and independence, and every power, jurisdiction and right which were not by the articles of that confederation, expressly delegated to the United States, in Congress assembled. The ratification clause of the articles solemnly declared, that “whereas it has pleased the great Governor of the world, to incline the hearts of the legislatures we respectively represent in Congress to approve of and

The address'of the convention to the people on submitting the result of their labors for approval, which was signed by George Washington, its President, says: “The friends of our country have long seen and desired that the power of making war, peace and treaties, that of coining money, and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union. . . . In all our deliberations on this subject we kept steadily in view that which appears to us the greatest interest of every true American—the consolidation of our Union—in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed upon our minds, led each State in the Convention to be less rigid on points of inferior magnitude than might have been otherwise

The Constitution, thus prepared, was submitted to the people of the several States in conventions assembled, and they aggregately declared, in ordaining and establishing the said Constitution for the United States of America, that “the"people of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and to our posterity,” did ordain and establish the same.

A perpetual Union was thus established by the articles of confederation; to render that Union more perfect was the object to be'attained by the Constitution. It was to secure to the framers thereof, and to their posterity, the blessings enumerated. The consolidation of the Union and its perpetuity were not all that was contemplated. Absolute sovereignty and complete supremacy in the exercise of all gov rnmental powers confided to the national government were intended to be secured, and it is believed that such intention was accomplished.

All" legislative powers thereby granted were vested in the Congress, and the powers so granted to Congress are specifically enumerated in the eighth section of article first; and lest there might be doubts suggested as to the fullness of the authority granted, to such specific enumeration this clause is added, “ and to make all laws which shall be necessary- and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The omnipotence of the British Parliament is not more absolute than is the supremacy of the Congress of the United States upon all subjects which are either expressly or impliedly delegated to it. The President of the United States, upon his

The judges of every state are expressly declared to be bound by the Constitution and the laws of the United States, made in pursuance thereof, and as they have all taken an oath to support that Constitution, every safeguard would seem to have been provided to ensure their fidelity to that Constitution and the laws made under it. Such laws, overrule

These views, it is believed, are fully sustained’by learned commentators, as well as by the authoritative decisions of the Supreme Court of the United States, the final arbiter of the powers of that government. (Story’s Com. on the Constitution, §§ 354, 355, 356, 360.) In Marvin v. Hunter ( 1 Wheat., 304 , 324), the Supreme Court said: “The Constitution of the United States was ordained'and established, not by the states in their sovereign capacity, but emphatically, as the preamble of the Constitution declared, by the people of the United States.” Chief Justice Marshall, in delivering the unanimous opinion of the court in the case of McCulloch v. Maryland ( 4 Wheat., 416 ), observed: “ From the conventions called to ratify it the Constitution derives its whole authority. The government proceeds directly from the people, ‘ is ordained and established ’ in the name of the people, and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquillity and secure the blessings of liberty to themselves and to their posterity.’ The assent of the states in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived by the state governments. The Constitution, when thus adopted, was of complete obligation and bound the state sovereignties. It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to governments, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly

Again, we are to give to the various provisions of the Constitution such a construction as will most effectually subserve the great purposes of its formation, and best promote the general welfare of the grantors of the powers contained in it, the people, the source and fountain of all power. The grant of power is to be construed most favorable to the grantor, espe. dally where the power is granted, or the agency created, for the benefit and welfare of the grantor, or principal. The rule which should govern in such á case is clearly laid down by Story (Com. on Const., §413). He says: “But in construing a constitution of government framed by the people, for their own benefit and protection, for the preservation of their rights and property and liberty, where the delegated powers are not and cannot be used for the benefit of their rulers, who are but their temporary servants and agents, but are intended solely for the benefit qf the people, no such presumption, to use the words in the most restricted sense, necessarily arises. The strict or the more extended sense both being within the letter, may be fairly held to be within their intention, as either shall best promote the very objects of the people in their grant, as either shall best promote or secure their rights, property or liberty.”

This court, in the case of The People v. New York Central Railroad Company ( 24 N. Y., 485 , 486), approved of the rule enunciated by Johnson, J., in Newell v. People (3 Seld., 93), that a constitution is an instrument of government, made and

We are now prepared to enter upon the inquiry, what powers have been conferred by the Constitution upon Congress, and whether any such powers authorize the enactment by that body of the act passed February 25, 1862.

The express powers needful to be referred to, thus specifically delegated to Congress, are:

1. To levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.

2. To borrow money on the credit of the United States.

3. To regulate commerce with foreign nations, and among the several States and with the Indian tribes.

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

5. To provide for the punishment of counterfeiting the securities and current coin of the United States.

6. To declare war, grant letters of marque and reprisal. .

7. To raise and support armies.

8. To provide and maintain a navy.

9. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions»

10. The United States having guaranteed to every State-in this Union a republican form of government, and engaged to protect each of them against invasion and against domestic violence, Congress has power to fulfill those engagements.

11. Congress has also power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

We are to apply to the construction of the powers thus delegated, the rule as settled in the case of McCulloch v. Maryland (supra), that the Government of the United States 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. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms, and where a power is expressly given in general terms, is not to be restrained to particular cases, unless that construction grows out of the context, expressly or by necessary implication.

Chief Justice Marshall, in Gibbons v. Ogden (supra), in delivering the opinion of the court, says: “ This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed ? Is there one sentence in the Constitution which gives countenance to this rule ? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper for the purpose. But this limitation in the means which may be used is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by

Mo apology is necessary for quoting thus liberally from this profound jurist and learned expounder of the purposes and objects of the Constitution, and of the powers conferred by it

We should be doing great injustice "to the framers of the Constitution, and a great wrong to the people who adoptfed it, to secure to themselves and their posterity the blessings of liberty, if we give to it such a construction as will cripple the government, and render it unequal to the objects for which it was instituted. We must also bear in mind that no interpretation of the words, in which those powers are granted can be a sound one, which narrows their ordinary import, so as to defeat the objects for which that Constitution was made. That would be to destroy the spirit and to cramp the letter of the Constitution itself.- Mr. Justice Story, in delivering the opinion of the court in Martin v. Hunter (1 Wheaton, 304, 326, 327), says: “This instrument (the Constitution) like any other grant, is to have a reasonable construction according to the import of its terms; and when a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expiessly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not impracticable task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time,

We have had pressed upon us, with much force and eloquence, the tenth amendment to the Oonstitution, as containing a restriction upon the powers of the government of the United States. Its languagé is: The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states or to the people. The same' reservation,, in substance, was contained in the second article of the articles of confederation, except that the word “ expressly ” was there placed before the word “ delegated.” The omission of this word in the tenth amendment is most significant, and shows the object was not to interfere with or restrict any of the powers delegated to the United States by the Constitution, whether expressly delegated or not. This is the'view taken by the Supreme Court in the case of McCullough v. Maryland (supra), where it is said, in the opinion, that “ there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers, and which requires everything granted shall be. expressly and minutely described. Even the tenth amendment, which was formed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘ expressly,’ and declares only that the powers ‘ not delegated to the United States, nor prohibited by it to the states, are reserved to the states or to the people,” thus leaving the question whether the particular power which may become the subject of contest, has been delegated to one government or prohibited to the other, to depend on a plain construction of the whole instrument. The men who drew and adopted this instrument had experienced the embarrassment resulting from the insertion of the word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the.prolixity of

Such would seem to have been the view taken by distinguished members of the house of representatives of the United States in the debate on the bill to incorporate the United States Bank, in June, 1811. Mr. Crawford, of Georgia, afterward Secretary of the Treasury, said: “If the state governments are restrained from exercising this right to incorporate a bank, it would appear, ex necessitate rei, that this right is vested in the United States. The entire sovereignty of this nation is vested in the state governments and in the federal government, except that part of it which is retained by the people, which is solely the right of electing their public functionaries.” Mr. Alston, a member for South Carolina, said: “ In the tenth article, first section, it is said, no state shall coin money, emit bills of credit, or make anything but gold and silver coin a legal tender in payment of debts; the interpretation which I give to it is, that the United States possess power to make anything besides gold and silver a legal tender. If what I conceive to be a fair interpretation be admitted, it must follow that they have a right to make bank paper a legal tender. Much more, then, have they the power of causing it to be received by themselves in payment of taxes.” (Elliott’s Debates, vol 4, pp. 367, 368.) These positions do not appear to have been controverted in the debate.

It seems here appropriate to refer to the provision of the particular act of Congress now under consideration. It was

The question presented for decision in these actions is, has Congress the power, under the Constitution, to make a law declaring treasury notes, issued by the United States, and payable at its treasury, for the redemption of which the credit of the federal government is pledged, and for the payment whereof the entire property of the government and that of each citizen, which may be reached by taxation, is also pledged, a legal tender in the payment of debts, and lawful money of the United States ?

Before proceeding to the consideration of this question, it will be instructive to revert to the proceedings of the convention which framed the Constitution.

The second clause of section eight of article first of the Constitution was originally reported in these words: “ To borrow money and emit bills on the credit of the United States.” This clause coming up for consideration in the convention, Mr. Governeur Morris moved to strike out the words “ and emit bills on the credit of the United States,” remarking that, if the United States had credit, such bills would be unnecessary— if they had not, unjust and useless. Mr. Madison said, will it . not be sufficient to prohibit the making them a tender? This will remove the temptation to emit them with unjust views.

Mr. Mercer was a friend to paper money, and was, consequently, opposed to a prohibition of it altogether. He said “it would stamp suspicion on the government to deny it a discretion on this point.” The clause was stricken out (Madison Papers, vol. 3, p. 1343, &c.), but no prohibition on Congress was inserted to issue paper money or to make the same a legal tender.

Mr. Madison adds, in a note at page 1346, that the vote of Virginia in the affirmative was occasioned by the acquiescence of Mr. Madison, who 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.

Mr. Morris subsequently reported the Constitution to the convention, and the second clause of section eight was reported as it now stands, the words “on the credit of the United States,” which had been erased, having been reinserted. The power was, therefore, given to Congress to borrow money on the credit of the United States, and it would appear to have been the -understanding of the members of the convention, that such power authorized the issuing of notes or bills by the government. It is undeniable, that the convention, with its attention particularly directed to the consideration of the question, declined to prohibit their issue, and also declined to prohibit the making of them a legal tender in payment of either public or private debts. The exigencies of the government at an early day compelled a resort to the power of borrowing money on the credit of the United States, and such power has

Issues of treasury notes have been authorized by acts of Congress of February 25, 1813; March 4, 1814; December 26, 1814; October 12, 1837; January 31, 1842; August 31, 1842; July 22, 1846; January 28, 1847; December 23, 1857.

President Madison, in approving the act of June 30, 1812, entirely overcame the scruple or doubt suggested by him.that the bills which might be issued under the authority to borrow money, ought not or could not be made a tender for public debts. That Congress possessed that power is now settled by judicial authority. In Thorndike v. The United States (2 Mason, 1, 18), Story, J., said: “By the statutes of the United States, under which treasury notes have been from time to time issued, it is enacted, that such notes ■ shall be receivable in payment to the United States, for duties, taxes and sales of public lands, to the full amount of the principal and interest accruing due on such notes. It follows, of course, that they are a legal tender in payment of debts of this nature due to the United States, and by the very tenure of the acts, public officers are bound to receive them.”

We find, therefore, a long continued practice on the part' of Congress in the issue of treasury notes on the credit of the United States, and declaring such notes to be a legal tender in payment of certain debts due to the United States, and the legality of such notes sanctioned by all departments of the government, and the power of Congress to issue the same and make them such legal tender, expressly affirmed by the courts. The deductions to be made from such facts will be hereafter

Congress have continuously, since the year 1792, exercised the power of declaring what shall be a legal tender in payment of private as well as public debts, in reference to a metallic currency. Now, it is conceded that there is no express delegation of power to Congress to legislate at all, on the subject of legal tender, and, as has been remarked, neither is there any prohibition in the Constitution, upon Congress, forbidding such legislation, or declaring what it shall or shall not make a legal tender. This scrupulous omission to make any provision in the Constitution, on this subject, was not accidental. The attention of the convention-was particularly attracted to it, as we have seen, and we cannot doubt that the members of the convention intentionally omitted inserting any provision on the subject, preferring to leave its exercise to the implied powers delegated to Congress. It is clear, from the remark of Mr. Madison in the convention, already quoted, that in his opinion Congress would have the power to declare bills or notes issued on the credit of the United States, a legal tender, unless prohibited from so doing, by some provision of the Constitution.

Another significant circumstance as indicating the opinion of the convention that Congress had the power to legislate on the subject of legal tender, is found in the fact, that on the 6th of August, 1787, the Constitution, as previously agreed upon in the Convention, was reported by the committee of detail, nearly in the form it was subsequently passed. But article thirteenth of the then proposed Constitution, declared that “ no state, without the consent of the Legislature of the United States, should make anything but specie a tender in payment of debts.” This proposed clause of the Constitution, therefore, contained a distinct and unequivocal acknowledgment that it would be competent for Congress to give its con

This seems an appropriate place to consider the legislation of Congress under the powers conferred upon it to coin money, regulate the value thereof, and of foreign coins. It is to be borne in mind, that no express power is given by the Constitution to Congress to establish, or make anything a legal tender in payment of debts; neither, as has been already observed, is there any prohibition contained in the Constitution forbidding legislation by Congress on that topic, or declaring what it shall or shall not make a legal tender. The framers of the Constitution could not have been ignorant that the power to declare what shall or shall not be a legal tender or, in other words, lawful money of a country, was a necessary incident of sovereignty, and had ever been exercised by the sovereign power in all civilized nations. They were equally cognizant of the fact, that the colonies had invariably exercised this power; and that the states, on the application of the Continental Congress, and pursuant to its reconimendation, had made the issue of paper money by the Continental Congress, for the purpose of carrying on the war of the revolution, a legal tender in payment of debts. This legislation by the states was invoked, because that Congress had no power to legislate.

In examining the history, of legislation on this subject, we find that the first act of Congress relating to legal tender, is that of April 2d, 1792, establishing “the mint for striking and coining gold and silver coinsand by section sixteen it was enacted, that all the gold and silver coins which shall have been issued from said mint, shall be a lawful tender in all payments whatsoever. The first issue of silver dollars from the mint was not before October, 1794; and of gold coin not before July, 1795; and the whole amount of metallic money issued from 1793 to 1795, was only $463,541.80 in value. To provide a legal medium.of commerce, an act was passed on the 9th of February, 1793, declaring that, from and after the first day of July, 1793, foreign -gold and silver coins should pass cur rent as money within the United States, and be a legal tender for the payment of all debts and demands, at the several ana respective rates therein mentioned and prescribed. This act embraced the coins of Great Britain, Portugal, France, Spain, and the dominions of Spain. It was practically the first legal tender act ever passed by Congress.

On the 4th of August, 1790, an act was passed by Congress, to provide for the collection of duties, which declared that certain foreign coins, therein enumerated, should be received in payment of duties at prescribed rates of value, but did not declare the same should otherwise be a legal tender. This provision of the act of 1790, was repealed by the act of February 9, 1793, the repeal to take effect July 1, 1793. Subsequently other acts have been passed by Congress, from time to time, changing the value of certain foreign coins and making them a legal tender, for the payment of all debts and demands, sometimes by weight and then again by tale. (Act of April 10,1806; act of March 3, 1823, making foreign coins receivable in payment of public lands; act of 25th June, 1834, de

By the act of June 28,1834,-foreign gold coins were directed to pass current as money within the United States, and be receivable in all payments by weight, of the fineness and at the rates therein mentioned. By the act of January 18,1837, the standard for both gold and silver coins of the United States, was thereafter to be such, that of one thousand parts by weight, nine hundred should be of pure metal and one hundred of alloy, and the alloy of the silver coins should be of copper, and the alloy of the gold coins should be of copper and silver; provided, that the silver do not exceed one-half of the whole alloy. The, weight of the gold and silver coins was prescribed, and they were declared to be legal tenders of payment according to their nominal value. And it was further provided in and by said act, that the silver coins theretofore issued at the mint of the United States, and the gold coins issued since July 1, 1834, should continue to be legal tenders of payment for their nominal value, on the same terms as if they were of the Coinage of that act.

By the act of 27th February, 1853, the weight of the half-dollar was reduced from 206J grains to 192 grains, and all the coins of lesser denominations in proportion, and they were made legal tenders in payment of debts for all sums not exceeding five dollars. We thus see that Congress, since the organization of the government, commencing in the presidency of Washington, has exercised plenary power and control over the subject of currency and legal tender laws; it has established the value of certain foreign coins at one time and changed it at another; has made them a tender in payment of all debts, - now by weight, -and then again by tale; repealed such laws and enacted them again, sometimes making such coins a legal tender in payment of all debts, and at other times limiting them to the payment for public lands or for duties and taxes, also making the evidences of the public debt or stock of the

We also see that Congress has changed, from time to time, . the standard of value of the coins struck by our own mint, debased them by altering the fineness and .weight and the relative value of .the gold.and silver, and making the debased coins, as -well as those of a greater value, not debased; equally a legal tender for the payment of all debts, public and private, at their respective nominal values.

As has been before observed, there is no express grant of power to Congress to make-gold and silver or anything else a tender in .payment of debts, .public or private. . It is conceded that Congress may properly say what the United States -may receive in payment and discharge of debts due -to it, and that it may therefore rightfully say in what currency or metals or things payment may-be made of them. Admitting this, it .is contended that it does not follow that Congress has the power to say what shall be a tender and discharge of a debt due from one individual to another. Our review of the legislation of Congress has shown us, that under the clause of the Constitution authorizing it to coin money and regulate the value thereof, Congress has uniformly declared that the money so coined, and the value of which has thus been regulated, should be received as a.legal tender in payment of all debts, equally whether due to the government or-to private individuals, and that under the power-to regulate the value of foreign coins, it has so, from time to time, regulated and prescribed their value, and made.them a legal tender in payment of all debts. It has made coins of unequal intrinsic value and -fineness equally a tender in payment of debts at their respective nominal values.

All these powers have been thus exercised by Congress frorn the foundation of our government, ■ and so far as my investigations have enabled me to say, they'have been unchallenged. W.e are not furnished with any case where they, have been questioned by the courts, and what inference such a uniform course of legislation, acquiesced -in by the courts and by the country, .should have, would seem to -be well established.

Judge Story says, in reference to a question of jurisdiction of the Supreme Court: “ This weight of contemporaneous exposition by all.parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court through so long a period do, as we "think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject tó' perpetual and irremediable doubts.” (Martin v. Hunter, 1 Wheat., 421 .) In Cohens v. Virginia ( 6 Wheat., 421 ), Chief Justice Mabshall observed, that “ this concurrence of statesmen, of legislators and of judges, in the same construction of the Constitution, may justly inspire some confidence in that construction.” “ An. uniform course of action, involving the right to the exercise of an important power for half a century, and this almost without question, is no unsatisfactory evidence that the power is rightfully exercised.” (Briscoe v. Bank of Kentucky, 11 Peters, 257.)

“ The uniform construction given to a provision of the Constitution by the legislature, with the silent acquiescence of the people, including the legal profession and the judiciary, and the injurious results which would come from a contrary interpretation, are proper elements of a legal judgment on this subject.” (Per Black, Ch. J., Moores v. City of Reading, 21 Penn., 188 ; see also Norris v. Clymer, 2 Penn., 277 .)

Marcy, J., in People v. Green ( 2 Wend., 274 ), says: “ Great deference is certainly due to a legalized exposition of a constitutional provision, and especially when it is made almo.st contemporaneously with such provision, and may be supposed to result from the known views of policy and modes of reasoning; which prevailed among the framers of the instrument expounded.” Chancellor Walwoeth, in the case of The People v. Coutant ( 11 Wend., 511 ), said: “Upon a question of real doubt as to the meaning of a particular clause in the Constitution, a legislative construction, if deliberately given

This point is very ably and conclusively discussed by Judge Stoby, in his work on the Constitution, and as this alleged or anticipated abuse of the power has been much pressed upon us in this argument, as a reason why we should hold that th'e power doe.s not exist, a more particular reference to the suggestions and reasons of this learned and authoritative commentator may be permitted. In section 425 he says: “A power given in general terms is not to be restricted to particular cases merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate, and in its common aspect addresses itself so much to popular fears and prejudices that it insensibly acquires a weight in the public mind, to which it is in nowise entitled.....But the argument from a possible abuse of power against its existence or use, is in its nature not only perilous, but in respect to governments would

Hothing could be added to the pertinency, cogency or conclusiveness of these views. Mr. Justice Johnson, in deliv

If, then, Congress has the power to establish a legal tender, is there any constitutional reason why the exercise of the power should be restricted to a particular medium? If Congress can coin any metallic substance, under the power to coin money, and stamp it with an arbitrary value, as it is conceded it may, then it follows from the practice of the government, and the rules and principles enunciated, that it can make such stamped metal a legal tender, at any designated value. Intrinsic value of the thing stamped or coined, has nothing to do with the question of power. Such metals, so stamped, are not issued or put in circulation on the faith or credit of the United States government. Uo pledge is made to redeem them, and they may possess little or no intrinsic value; yet it is not denied, that such pieces of metal so stamped or coined may be lawfully issued, and made a legal tender, and thus become lawful money of the United States. It is difficult to perceive, if this can be done with pieces of metal, why it is not equally within the power of Congress to declare the treasury notes which it may lawfully issue as a circulating medium, and which it may lawfully make a tender in payment of debts due to it, a legal tender also in payment of all debts. These notes are issued on the faith and credit of the whole Union, and the property of which, and of all its citizens, are pledged for their ultimate redemption; and if the metals may be made a tender, why may not notes equally be made a legal tender in payment of all debts, if the exigencies of the government should require

History informs us that the effect of serious and protracted wars is to produce a hoarding and withdrawal of the precious metals from circulation, and a suspension of -specie payments on the part of banking institutions. So inevitable is this result that no legislation is effective to prevent it. The Bank of England, with the assent of the privy council, suspended specie payments in 1797, during the war with France, and such suspension continued, with the assent of parliament, until in 1823. Parliament, by the act of May 3, 1797, sought to give currency to the Bank of England notes, and compelled the use of them in payment of debts, by prohibiting the arrest and holding to bail of any person, unless it should appear, that no offer to pay the sum of money claimed, in notes of the Bank of England, payable on demand, had been made. And the act of 3 and 4 William IV, 1833, declared that the Bank of England, notes should be a legal tender in payment of all sums above five pounds.

“ Now sir, I hold that it is only by the judicious use of government credit, that a repetition of a similar state of things can be avoided in the event of another war. It may be laid down as a maxim, that without banks and bank notes, large government loans are impracticable, and without some substi tute, such loans, in the event of war, will be unavoidable. The only substitute will be found-to be in the direct use by the government of its own credit. Now, as I regard the borrowing from the banks, not only as one link in the connection between government and banks, but as inevitably leading to the use of bank notes in the collection and disbursement of the revenue, I also regard the use. by the government of its own credit( , in the form of treasury notes, or some other or better form, as indispensable to the permanent success of the policy of this bill. If the government had relied on its credit, instead of loans from the banks, in the late war, if it had then refused to receive and pay away bank notes, as this bill proposes, or had had but the manliness to refuse to receive the notes of banks which refused to receive its own at par, I venture little in saying, that the expenses of the war might have been reduced forty millions. For these reasons I cannot assent that the government should repudiate the use of its own credit; nor do I believe that such is the sense of this body. Should there be any one of a contrary opinion, let him submit a direct proposition to prohibit the government from the use of its credit. I would be glad to see the vote on such a proposition. Instead of being unanimous in its favor, as the mover of the

And in his speech of the 19th of September, 1837, on the bill authorizing the issue of treasury notes, Mr. Calhoun advocated the issue of such notes, without interest, in order to 'introduce them into general circulation in the place of bank notes. He goes. on to state that a paper currency in some form, if not necessary, is almost indispensable in financial and commercial operations of civilized communities, and that paper issued on the credit of the government is less liable to fluctuation in value and abuse, and that bank notes do not possess these requisites in the same degree; that paper money ought to rest on demand and supply simply, which regulates the value of everything else; that nothing but experience could determine what amount and of what denomination might be safely issued, and he concludes by saying:. “ Believing that there might be a sound and safe paper currency founded on the credit of the government exclusively, I was desirous that those who are responsible and have the power, should have availed themselves of the opportunity of the temporary deficit in the treasury.”

, It is certainly a matter of great felicitation that, in the present crisis and condition of the country, the government, warned by the evils and the enormous sacrifice attendant upon, and the embarrassments created by the use of the depreciated paper of suspended banks, for the purpose of carrying on the present war waged by the insurgents who are seeking its overthrow, has availed itself of'its own credit, and has thus far been abundantly supplied with means to prosecute a war, gigantic in its proportions, and calling for enormous expenditures.

' We have abundant authority, if any were needed, for taking judicial notice of the existence of the present war, of its extent, and of the condition of the country. The Supreme Court of the United States, in the recent prize cases, say: “ They cannot ask the court to affect a technical ignorance of the existence of a war which all the world acknowledges to be

Notwithstanding the vast amounts which have bepn raised and expended, and the enormous debt created, the credit of the government is now higher than it was at the commencement of the struggle, and a generous and patriotic people are now daily voluntarily pouring into its treasury, millions of money to aid and enable the government to preserve, protect and defend the Constitution and the Union. Fortunate will it be for the government and the people, if, on a careful examination, it shall be ascertained by the courts that these measures which have produced such benign and important results, are in harmony with the letter and spirit of the Constitution, and authorized by it. We have seen that the issue of treasury notes by the government, upon the faith and credit of the nation, is a lawful means of obtaining money. Instead of using these notes, as was done in the war of 1812, to procure in exchange for them the notes of suspended banks at ruinous rates, to be used as a circulating medium, the advantage is apparent, if the government can legitimately use its own notes for that purpose. The slightest reflection will show that they must be more valuable, and entitled to a higher degree of credit than the circulating notes of any banking institution. The bills of the latter have only pledged for their ultimate redemption the property of the corporation issuing them, while those of the government, as already observed, have pledged for their redemption the faith and property and revenues of the nation, and that of its citizens which may be reached by. taxation, the extent "of which has no limits, provided only that it is uniform. We have seen that the notes

If Congress possesses this power, we cannot but perceive that its exercise in the present emergency is of incalculable benefit and advantage to the government and the people, whose agent it is. The question then for consideration is, whether the provision in the act of February, 1862, making these notes a legal tender, was a means useful or conducive or adapted to carry into execution any of the powers expressly conferred upon Congress. Those who challenge the validity of the act, must show, that at no time, and under no circumstances which may arise, is such a law useful, necessary or proper to aid in the execution of any or all of the powers expressly conferred upon Congress. Is such a law necessary to carry into effect any specific power given to Congress ? Have these means a natural connection with any specific power ? Are they adapted to give it effect ? Are they appropriate means to an end ? Are'such means conducive to the exercise of any power granted to Congress ? It is believed the doctrine, is so well settled by authority upon this branch of our discussion, that it cannot be shaken, and that at this day it is not open for debate. Analogous cases will show the- extent

■ “ In considering this clause it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The government is to pay the debt of the nation, and must be authorized to use the means which appear most eligible to effect that object. It has, consequently, a right to make a remittance by bills or otherwise, and to take those precautions which will render the transaction safe. This claim of priority on the part of the United States will, it has been said, interfere with the right of the State sovereignties respect

The case of McCulloch v. Maryland (supra), claims a more extended and careful examination than it has yet received. No case in the judicial history of the country was ever more carefully and elaborately argued, and the learned and exhaustive opinion of Chief Justice Marshall is a model of profound reasoning, evincing an intimate knowledge of constitutional law and a thorough acquaintance with the structure and principles of our government. “'Monumentumcere perenius.” Well might the eloquent and erudite William Pinckney prophetically say, of this opinion, that he saw in it “ a pledge of the immortality of the Union.” It is an authoritative commentary upon the Constitution and a judicial exposition of its powers and those of the different departments of the government. As such it is to be received and adhered to.

The question before the court was as to the power of Congress to create corporations. It was admitted that no such express power had been delegated to it by the Constitution. No slight importance was attached to the circumstance that in the Convention which framed the Constitution it had been proposed to confer this power expressly, and that the proposition was negatived. Mr. Webster, in his argument, said: “It was not the intention of the- framers of the Constitution to enumerate particulars. The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be - used, not being specifically prohibited. Congress is authorized to pass all laws ‘ necessary and proper’ to carry into execution the powers conferred on it. These words ‘ necessary and proper’ in such an instrument are properly to be considered as synonymous. Necessary powers must here intend such powers as are suitable and fitted to the object; such as are best

Mr. Wirt, the attorney-general,, arguendo, said, it was not requisite that the particular thing done by Congress “ should be indispensably necessary to the execution of any of the specified powers of the government. An- interpretation of this clause of the Constitution, so strict and literal, would render every law which could be passed by Congress unconstitutional ; for of no particular -law can it be predicated that it is absolutely and indispensably .necessary to carry into effect any of the specified powers, since a different law might be imagined, which could be enacted, tending to the same object, though not equally adapted to' attain it. As the inevitable consequence of giving this very restricted sense to the word ‘ necessary,’ would be to annihilate the very powers it professes to create; and, as so gross an absurdity cannot be imputed to the framers of the Constitution, this interpretation must be rejected.” In relation to the argument, that alBpowers to be exercised by Congress were enumerated in the Constitution, Mr. Wirt also observed: “ The Convention well knew that it was utterly vain and nugatory to give to Congress certain specific powers, without the means of enforcing those powers. The auxiliary means, which are necessary for this purpose, are those which are useful and appropriate to produce the particular end; necessary and proper’ are there equivalent to needful and adapted. Such is the popular sense in which the word necessary is sometimes used. That use of it is confirmed by the best authorities among lexicographers. Among other definitions of the word necessary,’ Johnson gives needful and he defines need’ the root of the latter by the words want, occasion.’ Is a law then wanted, is there occasion for it, in order to carry into execution any of the enumerated powers of the national government, Congress has the power of passing it. To make a law constitutional, nothing more is necessary

in the unanimous opinion of the court, said: “Among the enumerated powers of the government we find the great powers to levy and collect taxes, to borrow money, to regulate commerce, to declare and conduct a war, and to raise and support armies and navies. The sword and the purse, and all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may be with great reason contended, that a government intrusted with such ample powers, ón the due execution of which the happiness and prosperity of the nation so vitally depend, must also be intrusted with ample means for the.ir execution. The power being given, it is the interest of the nation to facilitate its execution. It can- never be their interest,

“ The government which has a right to an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means,- and those who contend they may not select any appropriate means, that one particular mode of affecting the object is excepted, take upon themselves the burden of establishing that exception. . . . But the Constitution of .the United States has not left the. right of Congress to employ the necessary means .for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers, is added that of making ‘all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department thereof.’ The counsel for the State of Maryland have urged various arguments to prove that this clause, though in terms a grant of power, is not so- in effect; but is really restrictive of the general right which might otherwise be implied, of selecting means for executing the enumerated powers. . . . But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the government, but such only as may be ‘ necessary and proper ’ for carrying them into execution. The word- ‘necessary’ is considered as controlling the sentence and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and .without which the power would be nugatory: that it excludes the choice of means and leaves to Congress in each case, that only which is most direct and simple. Is it true that this is the sense in which the word ‘ necessary ’ is always used? Does it always import an absolute physical necessity so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference'

“ It must have been the intention of those who gave these powers, to ensure, as far as human prudence could ensure, their beneficial execution. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which the government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by inscrutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best 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 avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. . . . This clause, as construed by the State of Maryland, would abridge, and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended is, we should think, had it not been already controverted, too apparent for controversy. We think so, for the following reasons:

“ 1st. The clause is placed among the powers of Congress, not among the limitations on those powers.

“2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.

“ No reason has been or can be assigned for thus concealing an' intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not its weakness. . .

We have made these very liberal extracts from this opinion, because the points discussed and decided in it dispose of those principally presented for consideration in the present actions. The attempt would be futile to restate them, in language equally clear, appropriate and forcible. The doctrines of this opinion have been recognized as the law of this country for nearly half a century, and judicial propriety forbids that the points thus deliberately decided should again be opened for discussion and examination. They have lately received the approval of the Supreme Court in the case of The People v. The Tax Commissioners, ( 2 Black, 620 ). The principle settled in this case is decisive, we think, of the present actions. It was there held that Congress, under the power to borrow money, had the power to declare that the stocks or securities issued by the government of the United States, in the execution of that power, although held as property by citizens of-the several states, could lawfully be exempted from taxation, under

We accept these expositions of the powers of Congress by the Supreme Court of the United States as unquestionable, and we concede that upon all questions arising upon the construction of the federal Constitution, the decisions of that court are to be received as authority and final, and they will be followed by the courts of this State, whatever may be their own views upon the question. Such has been the uniform current of authority in this State. (Hicks v. Hotchkiss, 7 Johns. Ch., 297 ; Mather v. Brook, 16 Johns., 233 ; People v. Platt, 17 id., 195; Matter of Wendell, 19 id., 153; McCormick v. Pickering, 4 Comst., 276; Roosevelt v. Cebra, 17 Johns., 108 ; Cochran v. Van Sarlay, 20 Wend., 365 ; Kunsler v. Kohans, 5 Hill, 317 ; North River Steamboat Company v. Livingston, 3 Cowen, 713.)

We find, therefore, the law to be settled that, where the power is given to Congress to do a particular thing, the means necessary and proper for its execution are also delegated, and that Congress alone is the judge of the means most proper to be selected to aid in the execution of the power. The end must be legitimate, that is in good faith necessary to execute and make effectual some one of the delegated powers, and thus brought within the scope of the Constitution, then all means, which are appropriate, which tend, or are adapted to the end, and which are not prohibited, but are in harmony with the letter and spirit of the Constitution, were also delegated to Congress, and may constitutionally be adopted by it. It must be seen that this necessarily is so. The Constitution was framed for coming ages and for all time, and for a great country) and for millions of people. It was to render more perfect a

The provision that all taxes should be uniform, is indicative of the idea that the currency of the country should be uniform also, and-it is not believed that this important and express injunction of the Constitution can be observed unless the currency be uniform throughout the United States. The effect of making our own coins and foreign coins a legal tender in payment of debts, has been to make them of uniform value throughout the United States, and the same result is attained by making treasury notes a legal tender. That which is a legal payment to the soldier in the field, the laborer who toils for the government, or the farmer or mechanic who supplies it with the products of his farm or workshop, is equally available to them to discharge debts which they owe. If this were not so, it is plainly to be seen that the notes of the government must remain in the hands of those to whom they are first paid, or be parted with by them at great loss. To obviate all these inconveniences and difficulties, Congress has declared, when it authorized the issue of these notes, that they should be a legal tender as well for private as public debts, adopting this as a means to give full effect to the power it possessed of borrowing money, and to raise and support an army and navy, and to levy and collect taxes. It cannot be denied that the end sought to be attained is legitimate; that it is within the scope and spirit of the Constitution, and it is for Congress to select the appropriate means, and if they are adapted to the end and not prohibited, they are constitutional. It is not the province of the judiciary to say that the best means have not been adopted, or that those adopted were indispensable. The range of selection of means rests solely in the discretion of Congress, and if that discretion is unwisely exercised, the remedy is by a change of members of that body and a repeal of the law.

A similar principle has been declared by the courts of this State in an analogous case. By section. 1 of article 1 of the

It must certainly be conceded that the choice of means, in the present case, is more clearly legitimate than those selected .by Congress in other instances, in the exercise of its delegated powers, and if such means were constitutional, it is not perceived why those adopted, in the act under consideration, will not stand the same test. We have seen that under the power to coin money and regulate the value thereof, Congress has, unquestioned, since the organization of the government, made .the money so coinéd a legal tender in payment of all debts. So, under, the clause to regulate the value of foreign coin, in like manner, it has made such foreign coin a legal tender. In pursuance of the authority to borrow money on the credit of the United States, it issued treasury notes and made them a legal tender in payment of all debts due the United States.

So, in virtue of the authority to pay the debts of the Union, it has been said by the Supreme Court, that Congress might lawfully give to all debts due to the United States a priority of payment over debts due to the States, or to any citizen. For instance, the Constitution confers on Congress the power to declare war. How the word “ declare” has several senses. It may mean to proclaim, or publish. But no person would imagine that this was the whole sense in which the word is used in this connection. It should be interpreted in the'sense

So with respect to the whole penal code of the United States. Whence arises the power to punish in cases not prescribed by the Constitution? All admit that the government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of Congress. The right

The case of The United States v. Marigold ( 9 How., 560 ), is an important one upon the point now under discussion. In that case the prisoner was indicted and convicted of the crime of having brought into the United States false, forged and counterfeited coin, in the resemblance and similitude of the gold and silver coins of the United States coined at its mint, knowing the same to be false, forged and counterfeited, with intent to utter, publish and pass the same. This was in vio

We think it has been demonstrated that, as Congress has the power to issue treasury notes on the credit of the United States, if it be necessary to render such notes effectual for the purposes for which they are issued that they should be made a legal tender in payment of all debts, Congress may, in its

It is no unimportant consideration, in support of the act of Congress making the government notes a legal tender in payment of private debts, that such tender insures uniformity in the currency, and puts all creditors on an equality. The soldier, who earns his dues by perilous services, and those who aid the government in furnishing it with labor or materials, are compelled to take this currency, and by this act it is available equally to them in discharge of their debts. Those whose patriotism leads them to serve or trust the government of the country, are not compelled to do so on any less advantageous - terms than those who labor for or trust private citizens. If there is any hardship in receiving the notes of the nation, it falls equally on all, and if it be a contribution for the support and maintenance of our liberties, it is equally made by all in exact proportion to the means which each possesses.

Again, it is urged that this act of Congress is unconstitutional and void, as it impairs the obligation of contracts. To arrive at this result, it is argued that, as the bond and mortgage mentioned in the second action, were made before the passage of the act and, by their terms, the amount secured thereby was payable in lawful money of the United States, the obligation is impaired by something being made lawful money which was not such at the time the contract was made. In the bank cases, it does not distinctly appear wnen the bills, payment of which were demanded in gold and silver, were issued; hut assuming that they were issued anterior to the passage of the act, then the same question is presented as that which arises upon the bond and mortgage.

While all must concede that legislation on the part of Congress which should, in effect, impair the obligation of a contract, would be unjust and to be deprecated, yet it is also apparent that there is no constitutional prohibition upon legislation of that character. The prohibition contained in the

The embargo acts, passed during the administration of Mr. Jefferson, not only impaired but destroyed numerous contracts, entered into upon the assumption that commercial relations were to continue uninterrupted, but the acts were adjudged to be constitutional on the ground that the power to make them was incidental to and a corollary from the right to regulate commerce. The bankrupt act of 1841 impaired the obligation of contracts in the most decided manner, yet the law was held to be constitutional under the general power granted to Congress. In Matter of Kleim (1 How. S. C., 277), Judge Catron said that the reason why the power to pass bankrupt laws was given to Congress was to secure to the people of the United States, as one people, a uniform law by which a debtor might be discharged from the obligation of his contracts, and his. future acquisitions exempted from his previous engagements;, that the right of debtor and creditor equally entered into the, mind of the framers of the Constitution. The great object was to deprive the states of the dangerous power to abolish debts. Few provisions of the Constitution have had more beneficial consequences than this, and the kindred inhibition on the States that they should pass no law impairing the obligation of contracts. In Kunzler v. Kohans ( 5 Hill, 325 ), Cowen, J., in delivering the opinion of the court, says: “ The directly granted power over bankruptcies, however, carries

But it is correctly argued that such is not the legitimate effect of the act, and that the obligation of no contract is-impaired by it. Take, for instance, the contract contained in the bond and mortgage—it is to pay the sum of $8,000 in lawful money of the United States. Now what was lawful money at the time the debt was payable or paid, or tender of payment made, if. so used for such purpose, would be a compliance with or fulfillment of the terms of the contract. Such would seem to be the uniform current of decision, and such was the rule of law recognized at a very early period. In the case of Faw v. Marteller ( 2 Cranch, 20 ), where Faw had, in the year 1779 covenanted to pay as rent yearly, well and truly, the sum of twenty-six pounds, Virginia currency, which consisted at that time of paper money, but it was withdrawn from circulation by a law of 1781, and it was claimed that the sum contracted to be paid was paper money and not specie, on the ground that paper money was lawful currency when the debt was contracted. Chief Justice Marshall, in delivering the opinion of the Supreme Court, however, said: “This can only mean money current at the time the rents shall become payable. It cannot be contended that he could -satisfy the terms of the lease by paying the rents in 1782 in paper currency.” He further said: “ The position, then, that the value of the

Dowmans v. Dowmans' Exrs. (1 Wash. Virg. Rep., 26), was a suit on a bond for £53, payable in Virginia currency, to which the defendant pleaded a tender. The Court of Appeals of Virginia held that the tender must be money current at that time (that is, the time the tender is. made), otherwise it is not money at all. There was no paper inoney current as money in April, 1790, when this plea was offered, and the tender» was held bad, although made in the currency named in the bond. In Pong v. De Lindsay and others (1 Dyer, 82 A.), in debt on ,bond for payment of £24 sterling, plea of tender: that at the time of the payment of said sum of money, certain money was current in England in the place of sterlings called pollards, viz., two pollards for one sterling, and that at the day aforesaid, the defendant tendered a inoiety of said debt in pollards. The tender was held good, and the note of the case is, "that if, at the time appointed for payment, a base money is current in lieu of sterling, tender at the time and place of that base money, is good, and the creditor can recover no other. A case is also cited from the year books (11 H. VII, 5 b.) where one is to pay at such a day five quarters of wheat; at the day of the contract they were worth fifty pounds, at the day of payment five pounds. The judgment shall be, that he recover five quarters of wheat or five pounds. And the defendant may deliver the wheat if he please, but the sum of money ought, of necessity, to be refer-, red to the day of the payment.

Queen Elizabeth, in order to pay the royal army, which was maintained in Ireland for several years, to suppress the rebellion of Tyrone, caused a great quantity of mixed money, with the usual stamps of the arms of the crown and inscription of her royal style, to be coined in the tower of London, and transmitted that money to that kingdom, with a proclamation dated May 24, in the 43d year of her reign, by which she declared and established this mixed money, immediately after

In James v. Stull ( 9 Barb., 482 ; affirmed in the Court of

We have arrived, therefore, at the conclusion, that the act of Congress under consideration is not obnoxious to the imputation, that it impairs the' obligation of contracts. The notes of the respondents, and the bond and mortgage, were each payable in lawful money of the United States, and we have seen by a uniform current of authority that what is lawful money at the time of payment, or at the time of tender of payment, is the lawful money, intended and referred to in the obligation. Such money, thus lawful at the time of payment or tender, can be used to discharge the obligation. It has universally been so held, in all cases, where the coin has been debased or changed intermediate the date of the contracts and the time of payment.

Take the case, so forcibly put by one of the learned counsel in this case. It was contended that the bond stipulated for so much gold. It however speaks of a repayment of, $8,000 of lawful money of the United States. Let the theory be tested. If a debt was owing of one thousand dollars-, and the debtor tendéred to his creditor, in payment of this sum ninety-four eagles, struck and coined before 1834, which, as to quantity and value of gold contained in them are equal to one hundred eagles struck and coined after 1834, would this be a legal or lawful tender? ■ If the sufficiency of the'tender consists in the fact of the amount of gold tendered, it certainly would-, but if it is to be determined by the amount of lawful money, it clearly would not. The court must hold that the debtor contracted to pay the one thousand dollars, lawful

It is the lawful money of the United States, made such by its authority, that can only be effectually used, in payment of debts, without reference to the intrinsic value of the thing tendered or paid. It cannot but be a matter of congratulation that our government, when it had a rebellion to put down, far more formidable than that of Tyrone, in Ireland, instead of imitating the bad example of the British government, by debasing the coin, and issuing mixed money, and making it a legal currency, availed itself of its constitutional right, of issuing money on the faith and credit of the nation, for the redemption of which the whole property thereof is pledged. Such money will ultimately, be redeemed by the precious metals on the resumption of specie payments, a day not far distant, we may hope, if we read correctly the auspicious indications of the times..

We have endeavored to bring to the consideration of the question presented in these cases, all the deliberation and care, which its great importance demanded. It has appeared to us, that the great principles which control them have long been settled by the Supreme Court of the United States, and that ápplying those doctrines to the cases under consideration, the result is inevitable, and not doubtful. Our aid has been invoked, to declare unconstitutional and void, an act of the Congress of the United States, passed after grave deliberation, with the concurrence of some of the most eminent men of the country, passed in a crisis of our national affairs when it was deemed by the legislative and executive departments of the government vital to our national existence. Eo tribunal can approach such- a question without a deep sense of its importance and of the grave responsibility involved in its decision. We must not fail to reflect upon the universality of the rule, that whenever the constitutionality of a law of Con

Chief Justice Savage, in Ex parte McCollom (supra), says: “ Before the court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt.” And Chief Justice Marshall, in Fletcher v. Peck (supra), said: “It is not on' slight implication and vague conjecture, that the legislature

It is urged by the counsel for the appellant, in the first above entitled cause that, as the Constitution of this State declares that the legislature shall provide by law for the registry of all bills and notes, issued or put in circulation as money, and shall require ample security for the redemption of the same in specie (sec. 6 of art. 8), it is not lawful to redeem the same in anything else than specie. A complete answer to this argument is, that the legislature have never acted under this injunction of the Constitution. As already observed, the provision of law in this state is, that the bills of the banking associations are to be redeemed in lawful money of the United

For the reasons already stated I arrive at the clear conviction' that Congress, under the authority conferred upon it to borrow money on the credit of the United States, had the authority to make the treasury, notes of the government, issued for such a purpose, a legal tender, as well in payment of debts due to the United States, as those of a private nature. I do not wish to be understood as intimating that the same thing could not be done by virtue of the authority conferred upon Congress to levy and collect taxes, duties, imposts and excises; to regulate the commerce of the Union; to coin money and regulate the value thereof and of foreign coin; to raise and support armies, and to provide and maintain a navy; to fulfill the guarantee of the Constitution that each State shall ever have a republican form of government, and shall be protected against invasion and domestic violence, and to enable Congress to discharge the solemn and imperative duty resting upon it, to make all laws necessary and proper for carrying into execution the high trust devolved upon the President, to preserve, protect and defend the Constitution of the United States, and to provide for and furnish him with all the means necessary for that purpose. It is sufficient for the present discussion, that the power which has been exercised by Congress is believed

If my brethren concur in these views, the judgment in the first above entitled cause will be affirmed, with costs, and the judgment in the second above entitled cause will be reversed, and judgment given for the plaintiff with costs, and that the defendant therein deliver up the bond and mortgage mentioned in the case submitted, and acknowledge satisfaction thereof, and discharge the same of record.

The notes tendered were issued under and by virtue of the act of Congress approved February 25, 1862 (Laws of U. S., vol. 12, p. 345), which authorized the Secretary of the Treasury of the United States to issue, on the credit of the United States, $150,000,000 of United States notes, not bearing interest, payable to bearer, at the treasury of the United States, in denominations not less than five dollars; and the act declares that such notes “shall be lawful money, and a legal tender in payment of all debts, public and private, within the United States,” except duties on imports and interest on certain bonds of the United States.

The principal point made by the defendant’s counsel is, that Congress had no authority to pass this act; and the principal questions in the case are, whether Congress has power to make anything but gold and silver coin a tender in payment of debts, or to pass any law impairing the obligation of contracts.

I agree that Congress does not possess this power, if it is not conferred upon it by the Constitution of the United States ; for whatever power or authority it has is granted to it by that instrument.

The Constitution expressly confers power upon Congress “ to borrow money on the credit of the United States;” “ to coin money, regulate the value thereof and of foreign coin;” “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;” “ to raise and support armies;” “ to provide and maintain a navy;”. “ to lay and collect taxes, duties, imposts and excises, to pay the

The Constitution authorizes the formation or erection of new States within the jurisdiction of others; and also the formation of new States by the junction of two or more States or parte of States, by the consent of the legislatures of the States concerned as well as of the Congress. (Art. 4, § 3.) All the States (subject only to this exception) must forever remain in thé Union in the same shape they were admitted. NTo right of secession is reserved to any State, or its. citizens, by the Constitution, and none can be implied or spelled out from its provisions or history, ot by the application of any principle of public law. The Union is indissoluble, except by an amendment of the Constitution, or its abrogation, in a legal manner."

. The doctrine, that the Federal Constitution is but a compact between the States, and that any State can lawfully withdraw from the Union by a legislative act of such State, or a resolution of a convention of its people, needs no special notice. It is almost as absurd, as the idea that the Constitution of a State is a mere compact between counties, and that a county can

I have enumerated but a small number of the powers specifically granted to Congress and the Government of the .United States by the Constitution. But I have mentioned enough to show that the Constitution provides a strong Government, which has the right of self-preservation against all unlawful combinations or revolutionary proceedings for its overthrow. And no one can doubt that an army and navy, as well as the militia of the several States, are lawful and constitutional means, when others are insufficient, for putting down a rebellion and preserving the Union. The authority to call forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, implies no prohibition against employing the army and navy for such purposes; nor does it imply that the militia cannot be used for suppressing a rebellion as well as a mere insurrection. A contrary doctrine would make the government of the United States almost as feeble as the old Confederation was, which was abandoned by reason of its weakness.

These views are entirely consistent with all legitimate State rights.' They only make such rights subordinate to certain great powers that the people granted to Congress and the national government, by the adoption of the Constitution of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity. (Preamble to Const.)

No State can coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; or pass any law impairing the obligation of contracts. (Art. 1, 110, sub. 1.) But Congress is not prohibited from doing either of these things, although it is prohibited, as well as the States, from passing any bill of attainder or ex post facto law, or granting any title of nobility. (Art. 1, §§ 9, 10.)

The colonies commenced, as early as 1703, to make their

Some of the states, under the confederation, made their notes or bills of credit a tender in payment of debts. But such notes or bills of credit were of little value out of the particular state that issued them. (See Story on the Con., § 1371-1372.)

The fair inference from these facts is, that the states were prohibited^ the Constitution from emitting bills of credit, or making anything but gold and silver coin a tender in payment of debts, and from coining money, in order to rid the country of every circulating medium or currency which had no intrinsic or legal value beyond the lines of the states that authorized it; and so Congress would provide money, or a currency, that would be of value throughout the Union. And to enable Congress to provide such a circulating medium, for. all ordinary purposes, the power was expressly conferred, “to coin money, regulate the value thereof and of foreign coins.”

The Constitution does not declare, in so many words, that Congress may prescribe what shall be a tender in,payment of debts; but -this power is included in those expressly conferred, and especially in the authority “ to make all laws which shall be necessary and proper for carrying into execution” the powers enumerated in the Constitution, and the other powers vested by it “ in the government of the United States, or in any department or officer thereof.” And Congress has exercised such power, in respect to metallic money, from the organization of the government; and that it has rightfully exercised this power, in respect to such money, is not questioned.

¡.\ But has Congress authority to make anything but gold and silver coin such a tender ? The inference is very strong that, if the people had intended to deprive Congress of the power to do such an act, they would have expressly prohibited it, as well as the states, from making anything but gold and silver coin such a tender.

The fact that there is no clause in the Constitution declaring, iii so many words, that Congress may make anything besides gold and silver coin a tender in payment of debts, falls far short of establishing that Congress can make nothing but such coin such a tender; for it is very clear that Congress may make something besides such coin a legal tender, whenever necessary and proper for carrying into execution any power that is expressly granted to Congress by the Constitution. But whether there was a necessity for such an act, at the time the one in question was passed, requires consideration.

So formidable a rebellion had never been known; and the means to be provided for its suppression were necessarily greater than any government, ancient or modern, had ever furnished suddenly for any purpose. It forebode the greatest and bloodiest civil war the world has ever seen. The very existence of the Union was imperiled and at stake; and the question that agitated all minds was,- can the federal government be maintained, or must it be overthrown by the wickedest and most groundless rebellion ever organized in any age or country.

These facts show that á navy of unprecedented magnitude and an army of at least half a million of soldiers, besides the militia of the several States, were necessary to preserve the government, maintain the Constitution, and execute the laws of the Union.

Congress had the authority, and it was its duty, to provide and maintain such a navy—to raise and support such an army, and to provide for calling forth the militia. But- such a navy could not be provided and maintained, or such an army raised and supported, and the expense of calling forth and supporting the militia defrayed, without adequate pecuniary means, and without the expenditure of vastly more money than could have been borrowed in coin in the entire world.

Could Congress have been justified, by the Constitution, if it had permitted the Republic to be .overthrown, because enough gold and silver coin could not be borrowed to save it ? I answer no; and it seems to me every person must answer this interrogatory the same way who concedes that the national government possesses the right of self preservation.

It seems to me to be very plain, that the Constitution authoizes Congress to pass such a law whenever necessary and proper for raising, maintaining and supporting a navy and armies to maintain the Union, preserve the Constitution and execute the laws of the United States. And the Supreme Court of the United States has decided, in McCulloch v. The State of Maryland ( 4 Wheat., 316 ), that the word necessary, in this connection, may mean needful, requisite, essential, or conducive to.

Whether the act in question was necessary and proper at the time it was passed, was for Congress to determine. But I do not doubt that it judged correctly and wisely when it determined this act was necessary and proper in view of the then existing condition of our national affairs. That it judged wisely in passing this act the astonishing success that has attended its execution fully proves. No nation has ever succeeded so well financially, in any great war, as the United States have in this, by reason of this law. All loyal citizens have prospered pecuniarily from the time it was passed. Such a thing as pecuniary distress, in the loyal states, on account of the war, or by reason of the financial measures of the government, has not been heard of.

Without this law there must have been the most terrible distress throughout the land. We should have had the most frightful intestine co.mmotions; anarchy would have taken the place of law and order in our cities and most populous towns. And it is probable the republic itself would have been subverted ere now, or have become too weak to be respected by other nations, if this law had not been passed.

This act is constitutional, because it is a means of carrying into execution the power conferred upon Congress, “to borrow money on the credit of the United States.” It provides for the conversion of the notes, issued under it, into bonds of the United States, which are to be paid in coin with interest at six per cent. (U. S. Statutes at Large, vol. 12, p. 345.)

That Congress could pass this act, as a means of carrying into execution the power to borrow money, may properly be inferred from the reasoning of the judges of the federal court, who delivered the opinions in McCulloch v. The Slate of Maryland (supra), and The People, ex rel. The Bank of Commerce, v. The Commissioners of Taxes of the City of New York (2 Black’s U. S. Rep., 620.)

It is not probable such an act as this .will ever be deemed necessary or proper in time of peace; and the oné in question will undoubtedly be repealed, and the notes under it called in, and a metallic currency restored, as soon after the present rebellion shall have been suppressed, as the interest of the people shall require, ór as such a course will conduce to the general welfare.

If this act impairs the obligation of contracts, it is, never-

I will not say this law could not be sustained on the broad -ground that the government of the United States has the right of self-preservation, and that it was necessary for that purpose. Nor shall I hold that Congress was' not authorized to pass it, by virtue of the power granted to it to coin money and regulate the value thereof. A very able argument has been made by one of the defendant’s counsel, to show that this power authorized the passage of this law, in which he quotes from Blackstone, that “ money is an universal medium, or common standard, by comparison with which the value of all merchandise may be ascertained; or it is a sign which represents the respective values of all commodities.” (1 Blk. Com., 276.) But it is unnecessary to determine these questions and I will not express any opinion respecting them.

This act is not an ex post facto law. For it is well settled that the phrase “ex post facto laws,” is not applicable to civil laws, but only to penal and criminal laws. ( Watson v. Mercer, 8 Peters’ Rep., 89 .)

It can hardly be said that this act impairs the obligation of contracts, though it compels creditors to receive notes of the United States in payment of debts which they might have exacted in gold and silver coin if this law had not been passed. It certainly is not in conflict with the constitutional inhibition against depriving persons of property without due process of law. (Amend. Con., art. 5.) It does not deprive any person of property, for it makes the notes issued under it as valuable as gold coin, in the hands of every person receiving them, for all commercial purposes, and for the payment of all debts, except those for duties on imports; and this exception is too insignificant to justify a holding that the act deprives persons of property in any legal sense of the term. I of

A judgment cannot be recovered for more than one thousand dollars, besides interest, for the wrongful conversion of one thousand gold dollars,, whatever premium may be paid therefor at the board of brokers in the city of New York or elsewhere; and such- a 'judgment may be paid,,dollar for dollar, in notes of the United States.

• Each five dollar note, issued under this act, is precisely of the same value, in legal contemplation, as a piece of gold coin of the denomination, of five dollars; and if all citizens would strictly observe this law, as they should, any person could obtain five dollars in gold coin for one of these notes at any place where such coin is to be had.

If a promissory note should now be- given for one hundred dollars, for a loan of twenty of these notes, and this law should be repealed before the- repayment of such loan, the person making the loan could exact one hundred dollars and interest, in gold and silver coin, in satisfaction of the debt.'

This law must be judged as if every person lived up to it, and had full faith in the ability and willingness of the federal government to pay these notes in coin, and to maintain itself under all, conceivable circumstances; and when it is judged in this manner, it does not deprive, any person of property in any legal sense of the term.

I have not deemed it either necessary or expedient to go into the.history of. the Constitution, or to refer to the debates of the convention that framed it; or to cite many authorities to sustain the foregoing- positions or conclusions. They seem to me to be so clearly correct,’ and- so-well grounded in good sense, that such labor is wholly unnecessary. I will, however, remark, that there-is nothing in-the history of the Constitution) or in the debates of the-convention that" framed’it, or in-any took of- authority, in conflict-with the views and conclusions

It follows that the judgment of the Supreme Court in the first case should be affirmed, and that in the second should be reversed, and one given for the plaintiff, declaring- that the notes of the United States, issued under such act, were and are a "legal tender in payment of the defendant’s bond and mortgage, and that he deliver the same to the plaintiff to be canceled, and acknowledge satisfaction of the mortgage, and cancel the same of record, and that the plaintiff recover the costs of the appeal to this court.

There are minor questions in each case; but the paramount one, common to and decisive of both cases is, the power of Congress of the United States to enact the law of the 25th February, 1862. That act declared, in terms, that the notes issued should be lawful money and a legal tender in payment of all debts, public and private, except duties on imports and interest on United States securities. If Congress could authorize the issue of the notes with the properties imparted to them by the law, it conclusively determines the cases against the defendants. The obligation of the banks was to redeem their circulating notes in “ the lawful money of the United States,” and if the United States notes were such lawful money, and a legal tender in payment and discharge of the mortgagee’s debt, in the second case, the mortgagee was not entitled to recover the difference between the market value of the notes and gold coin.

The government of the United States, as it need hardly again be repeated, is one of enumerated powers. Its powers are also limited, but within their scope and its sphere of action, it is supreme. Emanating from the people, all the powers granted are to be exercised directly upon them, and no state, as such, can control its operations. The government was, also, meant to be perpetual, and the powers with which it

Among the specified powers are these: 1st. To lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States; 2d. To borrow money on the credit of the United States; 3d. To regulate commerce with foreign nations, and among the several states; 4th. To coin money, regulate the value thereof, and of foreign coin; 5th. To provide for the punishment of counterfeiting the securities and current coin of the United States; 6th. To declare war; 7th. To raise and support armies; 8th. To provide and maintain a navy; 9th. To suppress insurrections and repel invasions. These are substantive powers, and if the Constitution were silent on the subject, the power of Congress to carry them into execution would be necessarily implied. When the power is given, in

In United States v. Marigold ( 9 Howard, 560 ), the only question involved was, whether Congress could pass a law. making it criminal to import spurious coin. The court held that the power existed, and that it was derived from the power to coin money and regulate its value. No argument can be adduced to show that punishing the importation of spurious coin is a means having a direct relation to the end of “ coining money and regulating its value.”

In executing, therefore, the powers specifically conferred, the government may use all appropriate means, that directly or indirectly conduce to their effectual exercise, unless such means are forbidden by the Constitution itself. . It can make no difference, even if the indirect effect of the means, employed to carry into execution a specific power, be to impair the obligation of private contracts. Guided by these rules, the act in question is to be considered and construed.

We are not to close our eyes to the fact that when the law now alleged, in some of its particulars, to'be unconstitutional, was passed, a rebellion and civil war existed of such proportions and magnitude as to threaten the destruction of the national government. The .exigency demanded the prompt and efficient exercise of all the important and vital functions of that government in maintaining and preserving it. Armies were to be raised and supported, and navies equipped. It was not only within the express power, but the duty of Congress to provide the ways and means for suppressing the widely extended insurrection; and that body would have been recreant to the important trusts confided to it, had it failed to employ all constitutional measures in the attainment of the end. But money was required .to raise and support armies, maintain navies, and provide the munitions of war. The money in the treasury, and the ordinary revenues of the

The purposes of the act in question were threefold: First, to borrow*money; second, to pay the public debts; and third, to collect the internal revenue and other demands of the government. The mode devised for borrowing money was by the issue of treasury notes. It is not denied that Congress possessed the power to use treasury notes; and I think it was

I am of the opinion, therefore, that the selection by Congress of the legal tender note as a means of carrying into execution the borrowing power, the power of collecting the internal revenue, and paying the debts of the nation, was within the measure

My conclusions are, that the act of Congress, approved on the 25th February, 1862, is not in any of its" features unconstitutional. The clause objected to, which makes the notes issued by the government lawful money and a legal tender in payment of public and private debts, was not outside of the measure of the authority given to Congress in the execution of its powers. In carrying into execution the power to borrow money on the public credit (if in the execution of no other specified power), it was fully justified, as a means. There is no prohibition of the use of such means in the Constitution, and Congress, in executing the great governmental powers conferred by that instrument, may use any modes or means, not prohibited, most fit and appropriate in its judgment, whether directly or indirectly conducive to the attainment of the end of the power. That the public exigencies required a resort to the particular' means complained of, is most manifest, though that was a question to be. determined by Congress. We cannot, however, shut our eyes to the magnitude of the necessity. If the Constitution and the national life were to be preserved, more money was required than had ever been coined at the national mint from the precious metals, and

• I am in favor of affirming the judgment of the Supreme Court in the first of the above entitled cases, and reversing it in the latter. .

The magnitude of the interests depending upon the ultimate decision of these cases, and the momentous principles which they involve, justify, in my opinion, an expression by any judge who either concurs in or dissents from the judgments now to be pronounced, of the reasons which may lead him to his conclusion. I will attempt to state my views of the cases with all possible brevity. I consider the question presented to be the sanie in each of the cases, and that is, simply, whether Congress may, constitutionally, make anything but gold and silver a tender in the payment of private debts, or may prescribe what shall be a tender for the payment of such debts.

It is immaterial that, when the contract in the first case was made, nothing but gold and silver was such a tender, if Congress has power to authorize a tender in a different sort of money. It is said that the act making these government notes, equally with gold, a tender for the payment of this and other debts contracted before its passage, is unconstitutional as impairing the obligation of contracts. The opinion, .however, has been expressed, and would seem to be well sustained, that the states only, and not the federal government, are forbidden by

In the case of The Metropolitan Bank and The Shoe and Leather Bank v. The Bank Superintendent, the same question is presented, between the holders of their notes issued as money and the banks which have issued them, as arises in the other case between creditor and debtor. Bach is bound to redeem or fulfill its obligations in that which is the lawful money or medium for the payment of debts; and the superintendent of the bank department cannot require, or be compelled to require,

The rights and duties of the superintendent, in applying the peculiar remedy' given by the statute for the payment or redemption of this currency, are to be measured by the statute. The Constitution of this State, it is true, declares that the legislature shall require ample security for the redemption of bank bills in specie. (Const., N. Y., art. 8, § 6.) This constitutional provision, however, does not execute itself. It calls for legislation, and must remain inoperative until such legislation is had. The present Constitution of this State was adopted since the passage of the general banking law, containing the provisions to which I have referred. These provisions must be construed according to their plain import, and the remedy which they give can only be pursued in the cases and to the extent specified in the law itself. If these banks have offered to redeem their bills in lawful money of the United States; they have complied with the law, and are not exposed to its inflictions. Lawful money of the United States means in this statute what it means in a bond or obligation—money which is a lawful tender for the payment of debts. Thus the same issue is presented here as in the case of Meyer v. Roosevelt, to wit, whether the act making government notes a tender for the payment of debts is a constitutional exercise of legislative power. If it is, the judgment of the Supreme Court, in the bank case, must be affirmed, and that in the Meyer case reversed. If, on the contrary, this court should be of opinion that Congress had no power to declare treasury notes a legal tender, then the result will be the reverse in each case.

The Constitution of the United States is a grant of powers, and creates a government of limited authority, Although sovereign within the range of its authority, the federal government cannot transcend that range nor exercise any power which is not either expressly or impliedly conferred by the instrument creating it. It is not claimed that the Congress of the United States is expressly prohibited from making anything but gold and silver a tender for the payment of debts.

It has been sometimes said, in the discussion of this subject, and oftener implied or suggested, that the power to regulate the circulating medium, and to establish the currency in which payments and exchange may be made, is a necessary function of every government, and that it is implied or involved in the very creation of the government of the United States, independent of any express grant conferring or involving the power to legislate upon the subject. I cannot, however, yield to a theory which would impute to the federal legislature these indefinite powers. If we were dealing with a government neither constituted nor controlled by a written fundamental law, it would be impossible to deny that such legislation as that which we are considering would be within its proper and ordinary functions. To authorize or direct the issue of paper money by the government, and to make that money a tender in the payment of debts, are acts not foreign to the idea of. government abstractly considered, and not unprecedented in the history of other governments. But we are dealing with legislative authority conferred by a written Constitution, and restricted to the measures or the subjects specified in that Constitution. Supreme and sovereign as the federal government is within its scope, and although it is a government of the people, acting upon them individually as

The Congress of the United States has power, by the eighth section of the first article of the Constitution, “to coin money, and regulate the value thereof, and of foreign coin.” The term money is used in different places in the Constitution, as it is elsewhere, in somewhat different senses. Here, however, it means, in my judgment, metallic money, gold, silver, and copper, or the metals used for coin, and nothing more. The phrase “coining” cannot, without violence, be applied to the issue of paper money. To coin money is to make, stamp and issue coins as money. Coins are pieces ,of metal, of a particular weight and standard, and to which a particular value is given in account and payment. The clause which follows, “to regulate the value thereof,” evidently means to authorize the regulation of the value of the coin thus issued, or the money coined; and that this is strictly metallic money, appears from the words immediately following, “and of foreign coin.” The design was to confer upon Congress the power to .regulate the value of domestic and foreign coins, and as the domestic money, whose regulation is thus conferred upon Congress, is the money whose coinage is authorized by the first part of the clause, the inference, is irresistible that this money is simply domestic coin or metallic money. The clause confers upon Congress absolute and exclusive power over the circulating coin of the country, domestic and foreign, by regu

The second subdivision of the same section of the Constitution authorizes Congress “ to borrow money on the credit of the United States.” Here the meaning of the word “ money ” is necessarily somewhat different. “Money,” says Mr. J. Stuart Mill, in his Principles of Political Economy (vol. 2, book 3, chap. 8, p. 9), “ which is so commonly understood as the synonym of wealth, is more especially the term in use to denote it when borrowing is spoken of. When one person lends to another, as well as when he pays wages or rent to another, what he transfers is not the mere money, but a right to a certain value of the produce of the country to be selected at pleasure, the lender having first bought this right by giving for it a portion of his capital. What he really lends is so much capital; the money is the mere instrument of transfer-But the capital usually passes from the lender to the receiver through the means either of money or of an order to receive money; and at any rate it is in money that the capital is computed and estimated. Hence, borrowing capital is universally called borrowing money.”

The importance of these observations, and their application to the subject in hand, will be seen in a moment, when we advert to the supposed inconsistency in borrowing money by issuing bills or notes which are themselves to circulate and perform the functions of money. In borrowing money on the credit of the United States, it is obviously not only competent but necessary to issue obligations of some sort, as evidences of the debt, and binding the United States to repayment. It could not be contended that these obligations must be issued only in return for money received, and not for capital or commodities of which money is the representative. As the government requires articles of various descriptions, or the services of men, for its exigencies in war and in peace, it may give, as it constantly has given for these values, its own obligations or evidences of indebtedness, and these are valid and properly issued under the power to borrow money. Such has

It may be observed here, that the fact that the Constitution

It appears from the journal of the convention which framed the Constitution, and from the Madison Papers (volume 8, p. 1843), that the clause authorizing Congress to borrow money was originally reported to the convention with the addition of the words, “and emit bills on the credit of the United States,” and that this latter part of the clause was stricken out by the convention. Mr. Madison says that this was done to cut off the pretext for a paper currency, and particularly for making the bills a legal tender. These facts are urged to show that the power now in question was expressly and intentionally withheld." They do undoubtedly show that such was the design of a portion, perhaps of a majority, of the framers of the Constitution. . But, on the other hand, the practical and theoretical construction of this part of the 'Constitution, in the subsequent administration of the government, to which I have referred, shows that one part of this design was not accomplished. Although the authority “to emit bills on the credit of the United States ” was expressly struck out and apparently intentionally withheld, it has constantly been recognized, and in this argument was conceded to belong to the government, under its general authority to borrow money. The design of the advocates of the alteration which' was made in the draft of the Constitution is not entirely clear to me from Mr. Madison’s account of the transaction; but, whatever it may have been, it must yield to the actual and legal construction of the words as they stand in the written instrument itself.

The construction given to the Constitution by its framers and their contemporaries, the discussions in the convention which, framed it, and the apparent intention with which certain clauses were added or stricken out in their deliberations, are constantly and justly referred to upon questions of the mean

It would be subjecting written constitutions to a severe test, as instruments of government, if the opinions, the declarations, or even the intentions of their framers were accepted as final upon questions of their construction, where there is a fair difference of opinion. Wise and far-seeing as the men who framed the Constitution of the United States unquestionably were, it would be attributing to them more than human sagacity to suppose that they contemplated such a history of ■ growth, extension and change, as has been accomplished by this country, or such an emergency as is now trying both its institutions and its people. The element of weaknesss in written constitutions, as in written codes, is their inflexibility and inability to adapt themselves to the ever-changing necessities of history and progress. So far as such constitutions

I am not contending that necessity can confer any additional powers upon such a government as ours, but simply that in the history of the country occasions will arise for the use of means to accomplish the recognized objects of the Constitution, different from what its founders could have anticipated, and perhaps contrary to their expectations, and that in such event the question of constitutional power is to be decided by a fair construction of the Constitution itself, and by the appropriateness of the proposed means to the proposed end, tested rather by the facts of the day than by the judgment of the past or its history.

Taking it for granted that Congress has power to issue treasury notes or bills of credit to circulate as currency, in order to borrow money upon the credit of the United States, the question before us comes to whether Congress may confer upon these notes the character of a legal tender in order more effectually to accomplish- the object of "borrowing money by or upon them.

The principles upon which' the Constitution is to be construed, in cases where the act in question is neither expressly authorized nor expressly forbidden, received, as is well known,

We are brought by such considerations, I conceive, to a narrow issue, after all, in this case. It is not denied that making treasury notes a tender between individuals is not in terms prohibited to Congress by the Constitution, although it is to the several States. The question that remains is, whether such a measure is appropriate to the object of borrowing money upon them. I cannot doubt, after long and anxious consideration of the subject, that it is.

It is conceded that Congress may issue these notes in a form and manner to make them readily pass and continue in circulation as currency, in order more easily to borrow or obtain property or value by its use. Mor is it disputed that the power which has been heretofore exercised, of making such notes a tender for dues to the government, is appropriate to the same end. Mr. Calhoun considered it so much so that he supposed that nothing else was needed to make such notes a permanent and - perpetual paper currency, and of course to enable the government to obtain, as a loan, without interest, for an indefinite time,-the whole amount of that currency. It is sufficiently plain that to make such notes also a tender between individuals must, or at least may, add still more to their use and currency, and so tend to keep a much larger amount in circulation. When the point is established that government has power to issue a currency as a means of borrowing from the people, the inference is irresistible to my mind that it may confer upon such a currency any and all attributes, not expressly forbidden by the Constitution, which will enhance its value and increase the amount likely to be retained in circulation and use.

It does, indeed, at first consideration, appear like a solecism to say that Congress is authorized to issue paper money, as a means of borrowing money. But the confusion arises from

The conclusion thus indicated is not without strong support from decisions of the Supreme Court of the United-States in cases strongly analogous to the present. In Weston v. The City of Charleston ( 2 Pet., 449 ), it was held, and the principle has been affirmed and extended in the recent tax case, in which the judgment of this court was reversed, that Congress can exempt from all State taxation the bonds or stocks issued by the United States. No express power to confer such a

The analogy to the legislation now under consideration is, in one aspect, very exact. It is said that the subject of contracts is left by our system to State legislation exclusively. But the assessment and collection of local taxes is equally within the domain of State power, and no right is more jealously asserted, as an attribute of sovereignty by the several States, than the right to subject all property within their limits to the taxes necessary for the support of their governments. Yet large masses of property and values are abstracted from the reach of State laws by the federal legislation to which I refer—legislation resting wholly upon a power implied from the propriety or advantage of conferring such attributes on federal evidences of debt, in order to aid the federal government in borrowing money.

In all such instances, the incidental consequences to the States or to individuals, however far-reaching, are no answer to the assertion of a power by the general government, if it be appropriate and adapted to an object which that government was expressly authorized to pursue.

It should also be observed that, although the laws of contracts, with their rights and remedies, as between citizen and citizen, do unquestionably belong to the States, and not to the federal government, yet the regulation of the value and denomination of the money or medium in which contracts of indebtedness are to be performed, is within the control of Congress, and with it necessarily the general subject of tender. The money of account and payment in all private as well as public transactions is the money of the United States; and no one has ever questioned the power always exercised by Congress to declare its own or foreign coins a tender in the pay

By the course of reasoning which I have thus indicated, and which might, of course, be much elaborated, I have been brought to the result that the Congress of the United States possesses the power to make the United States treasury notes or bills of credit lawful money and a tender in the payment of debts, and that judgment should be rendered in these two cases accordingly.

In concluding these observations, which have already been made more extended than I supposed they would or intended they should be, I will only add a single remark. It is, I think, proper for me frankly to say that I approached the consideration of this great question with a desire to sustain the act of Congress, whose validity is called in question. As much as this is due, in my judgment, to any and every act of the supreme legislature of the nation. But this just repugnance to thwart that legislative will or prohibit its exercise is enhanced in the present instance by the consideration of the grave responsibility assumed by any citizen, who, in any way or in any sphere of action, will interpose hindrances or obstacles to the efforts of the government to suppress the great and wicked rebellion, which has brought so much misery upon us—a rebellion as little justified in morals as in legal or constitutional right.

Notwithstanding such considerations, however, the question for us, as judges, is simply one of law; and if our judgments had been adverse to the right of Congress to pass this law, our oaths and our consciences are paramount to all other considerations. In this connection I must also say, that I commenced the examination of this question with serious doubts of the power of Congress to pass this law, and with an impression adverse to its validity. Deliberate examination has removed these doubts, and I give my judgment with a clear

The questions presented and argued by the appellant’s counsel are in this form: “First. Has Congress the power to make the paper promises of the federal government a legal tender in payment of any debts not due to that government ? Secondly. If it has this power in respect to any debt, not due to the federal government, can a bank of this state avail .itself of such an enactment and tender these federal paper promises in redemption of its bills, and thus estop the execution of the trust by which the state has secured the redemption of those bills out of a fund pledged for the express purpose by solemn provision of law?” It is conceded that Congress has power to authorize the issue of treasury notes, and make them receivable in payment of all debts and dues to the federal government. But the authority of Congress to make them “ lawful money and a legal tender in payment of all debts, public and private,- within the United States,” is challenged and denied.

I shall assume, without stopping to prove what has often been established upon judicial investigation and by judicial decisions by a court having the right to investigate and decide, that the instrument known as the Constitution of the United States, is a Constitution ordained and established by the people of the United States. That it contains certain specified powers and' provisions which, when carried into effect, produced a government, possessed of the right to maintain and perpetuate itself for all time." The product of the Constitution is government, and such was the intention of those who ordained' and established it. It is not a league, a compact, an alliance of 'states, but it provided for a government, that' should have, by. the exercise of the powers therein specified, a right to make laws and compel obedience to such laws. The powers of such government, though limited and

j. There can never, in theory or legally, be any conflict between the two jurisdictions, and we owe allegiance alike to ; each. There can be no conflict, and there should be no embarrassment touching the question of allegiance; as the Constitution of the United States declares: “.This Constitution, and the laws of the United States, which shall be made in pursuance thereof, &c., shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary 'notwithstanding." (Art. 6.) When, therefore, any act of the government is challenged, the sole inquiry and question for decision is, was such act authorized by the Constitution? If the act is done under a law of the United States, the inquiry will be, was‘such law “ made in pursuance of the Constitution." If the question raised is answered in the affirmative, state laws and constitutions in conflict therewith must yield. They are invalid and not binding upon the citizen. If the question is answered in the negative, then the act done was unauthorized and is void. Much has been said and written touching the rules proper to be adopted for the construction of the Constitution ; some claiming a liberal, enlarged construction; others, a narrow, strict construction. Governments áre established for the benefit of those subject to them. This is emphatically so of republican governments. The state government is for the benefit of the people-as well as the United States government, and in times of peace and the harmonious action of both governments, the state government operates upon and affects the interest of the people far more than the United States government. Its jurisdiction embraces vastly more subjects,' and affects more interests. As both governments are for the benefit of the people, I apprehend, that when a question of conflict between the two governments arises, the rule that a liberal construction' should be applied, because the government is beneficial, can have little application. The

These suggestions do not question the rule of liberal construction, as applied to the subjects which may be embraced in the specific powers conferred upon Congress; and when it becomes a question, whether 'such powers authorize the doing of certain things, undoubtedly all the attending circumstances' are to be taken into consideration, as in the construction of - contracts, with a view of determining whether the power fairly embraces the cases. The nature of a constitution, in the language of Chief Justice Mabshall, “requires that only its great outlines should be marked, its important objects designated,, and the minor ingredients which compose those objects' be deduced from the nature of the objects themselves.” He says: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of ■ all the means by which they may be carried into execution, would partake of the prolixity of a code, and could scarcely be embraced by the human mind. It Would probably never, be • understood by the, public.”

The nature of a constitution, then, is to mark the great outlines, and .designate the important objects of the government to be established. This is of necessity so; as to all organized bodies, some fundamental canons are enacted defining their creed or specifying their powers.

The Constitution, after specifying certain powers to be exercised by Congress, adds: “And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other' powers vested by this Constitution in the government of the United States, or in any department

I do not know that I object to the exposition of this provision of the Constitution, as made upon the argument of this case, by the learned counsel (Mr. Curtis) for the appellant. Undoubtedly the law enacted under this provision must sustain a proper relation to the previously granted powers, and must be necessary and proper for carrying into execution some one or more of those powers, or some other power vested in a department or an officer thereof. And I agree that Congress is not necessarily the exclusive judge of such relation, and of the necessity and propriety of making such law. Its decision may be questioned before the judicial power, which may decide that the relation, necessity and propriety did not exist, and thus adjudge the congressional act unauthorized. The judicial power will not be justified in considering the degrees of necessity and propriety, or in instituting comparisons between the measure adopted by Congress and some other measure better calculated, in the opinion of the court, for carrying into execution the granted power. Chief Justice Marshall, in the case referred to, sums up the argument by saying: “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”

Let us now bring into view some of the “ foregoing powers ” expressly conferred upon Congress. They are: “ to levy and

“ No state shall, without the consent of Congress, lay any duty or tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” (§ 10.) Let us add, for the purpose of showing the independent character of the government within its proper sphere: “ The executive power shall be vested in the president of the United States of America.” (Art. 2, § 1.) The Constitution makes provision for courts in which the judicial power of the United States shall be vested. Some amendments were made, and in article 10 it is declared: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved .to the states respectively, or to the people.” On reading these clauses containing powers and limitations, and certain prohibitions of powers to the States— powers national and common to all nations possessed of independence—of full sovereignty—what impression is produced

But with us, if the power is gone, whatever may be the condition of the country and its money, though the “gold and silver coin” may have disappeared—though its value, compared with all property, real and personal, may have appreciated an hundred fold—yet the debtor must produce it

In my opinion it is not extinguished; and I will proceed to state some reasons for this opinion:

In giving construction to contracts, wills, statutes—indeed any written instrument—it is important to understand clearly the.subject to which the written language was or should be applied. This rule is emphatically applicable in giving construction to the Constitution. The meaning of the language used must be understood, and the subject matters to which the language relates, or which may -be fairly embraced within the language creating the powers: the condition of things coexisting with the making of the Constitution, and which might be reasonably anticipated to exist in the. future, should be considered in giving construction to the various provisions of the Constitution, and to the Constitution as a whole. There existed at the time thirteen States, and it was understood that this number would be increased. Each of these states possessed all the powers pertaining to independent nations,

except as modified or restricted by the articles of confederation. They possessed powers common to all independent nations: of regulating their own commerce, and the law of contracts; of making money or declaring what should constitute money; and, of course, what should pay debts. They could emit bills of credit; issue their own paper money, and make it receivable in payment of debts. They could discriminate, in regulating commerce, in favor of their own citizens, and against the citizens of other states, or nations. Under such circumstances it was obvious, indeed it was already proved, that there could be no such thing as harmony touching any of those matters. Most of the then states possessed harbors upon the ocean, and were engaged in foreign commerce, and commerce among themselves. There could be no uniformity of regulations touching such commerce.

Some of the States tried to agree upon a system for themselves, and failed. The system of one State would nullify the system of another, or other States. Free importations by one State would render impracticable the system of other States, imposing duties for revenue or for the protection of home industry. Embarrassing and unreasonable regulations, touching commerce between the citizens of one State and other States would be made. Each State might have a moneyed system unlike that of any other State; a system of'weights and measures entirely different. Commerce between the citizens of one State and other States might be prohibited and destroyed. The confederacy had no power to derive a revenue from importations, nor had the states practically this power, as they would never be able to agree upon a common system, and owing to their geographical positions, any system other than free trade would be practically nullified by the action of the other States.

This state of things could not last. The people were powerless to protect their interests. A change was necessary, if they were to indulge hopes of future prosperity. This practically powerless condition of the people was an important, if not the most important, reason for making an effort to devise a remedy, and the remedy devised was the Constitution, A

leading object of the Constitution was to get rid of all conflicting commercial interests and, as to commerce, to effect a union of all the people of all the states, great and small, and make them one people, one nation, without divided interests, and without power, as states, to produce divided interests or conflicts. This was a.leading idea in faver of the Constitution, and to me it has always seemed the most valuable one.

Was this idea carried in to effect by the Constitution ? I think it was clearly and fully. It required several provisions to effect the object; some conferring powers upon the new government; others prohibiting the exerci.se of certain powers to the state governments. Hence were granted the powers: “ To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” “ To establish -uniform laws on the subject of bankruptcies throughout the United States “ to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measuresand, in addition, the power to make all laws necessary and proper for carrying into effect these powers. The prohibitions upon the states, in connection with commerce, are, that they shall not emit bills of credit, make anything but gold and silver coin a tender in payment of debts, or pass any “law impairing the obligation of contracts.” These provisions, I think, accomplish the object intended, viz., the committing to Congress, the common representative and agent of all the .people, the exclusive power to establish a uniform system of commerce throughout the United States. All these powers have a very important connection with and relation to commerce, over which the common government was to exercise great, if not exclusive, control for the common benefit of all the people of all the states.

How what is commerce ? I need not stop to look up and quote definitions. We know that it consists in the exchanging of property, or the buying and selling of commodities; the latter as generally understood. As so understood it cannot be carried on without money. In the absence of money it must substantially perish; something called money must exist. It is a neces •

But it may be further objected that this power of regulating commerce is limited to foreign nations and to commerce among the states, that is, between the people of one state and another; and that therefore Congress cannot make any regulatiomtouching the commerce in a state, that is, such as may be confined within the limits of a state; and cannot, therefore, do anything affecting such commerce. I apprehend that any attempt to distinguish, so far as commerce is to be affected by money, between commerce in a state, and commerce “ among the several states,” will always prove a failure. The products of any state enter directly or 'indirectly into the commerce “ among the states.” The manufactures of Hew England are consumed in all the states, and the grains and other productions of the western and middle states find a market in all the other states, and so also of the productions of the south, And

If the thing be inconvenient for circulation, it will embarass and’diminish commerce. Lycurgus understood this when he made iron the money of the Spartans for the purpose of preventing commerce and turning the energies of the people into other pursuits.

If the thing be convenient it may greatly increase commerce by stimulating industry. The paper promises of governments or of banks have, in modern times, been regarded as the most convenient article for an additional circulation, and although these promises refer to some other standard, usually coined money, nevertheless they may perform the office of money, and the sovereign power may declare them money, and make them tenderable in payment of debts. It may be that a like numerical quantity will not purchase as much property as the coined money to which reference is made in the paper promises. And this will always be so when the promise to pay coined money is not at once performed upon demand; for such coined money, if of the precious metals, as is usual, has an intrinsic value as an article of commerce in all the markets of the world, and the paper promises have no such value. But the measure of depreciation, where they circulate, may be greatly affected by the question whether they may be tendered in payment of debts. If they may be, the depreciation will be far less. Hence, though there may be great danger of the issues of government paper, or irredeemable bank paper, in excess, thus

This-is not the place to justify or assail the expediency of the act of Congress-authorizing-the-issue of treasury -notes, and declaring' them receivable in payment of taxes, interest, duties, debts and demands 'due to the United States, and declaring'them to’be lawful money and a-legal tender in payment of all debts, public and private, within the United States. It . is' the question of power: that we inquire about, and being- of the- opinion that the provisions in the act referred to, have a direct-tendency to-promote, the circulation'of the notes authorized to be'issued, and preserve them in -a degree ’from depreciation, as compared with coined money, and-that-they operate ¡directly upon-commerce and-tend-greátly to-regulate it among the'several states, and also with foreign nations, by stimulating greater' productions and facilitating the circulation and exportations of such'products, I am quite clear that they-are authorized by the provisions of the Constitution already brought under consideration.

Considering the subject or object of these powers, and the circumstance, the most important, that the people, who were to create and carry on this commerce, were members of other bodies politic, possessing certain powers in common with all ■ independent states, which powers, if exercised by them, would embarrass, derange, and might effectually destroy the common system established by the federal government, it was absolutely necessary to impose certain prohibitions upon these other bodies politic—the states. Among these prohibitions, I have always regarded, so far as commerce is concerned, and I may add, the peace of the states and the harmony of the systems, those which prohibit the states from making anything but gold and silver coin a tender in payment of debts, and from passing any law impairing the obligation of contracts. If these powers had been suffered to remain with the states, it is quite obvious that difficulties between the people of the different states would soon have arisen, endangering peace and harmony between them. Distrust would have existed, and there would have been an absence of that confidence necessary as a base for commerce between them. Independent nations may protect their merchants and citizéns from the frauds of other nations, consequent upon a debasement of the coin or a change of the measures of value in which debts are to be paid, or for a neglect or refusal to pay, by a resort to war. But the states have no right or power to make war upon each other, and they are prohibited from'doing certain things which might be a just cause of war, and the people have intrusted the regulation of commerce among them to a general common government. Notwithstanding the prohibition I am noticing, many of the states have, from time to time, for the relief and ease of their people, enacted stay laws, valuation laws, &c., &c., all of which, on being brought properly before a court, in which the judicial power of the United States is vested, have been set aside, and the creditor has had his remedies unimpaired,

I am dwelling upon these commercial powers and the system relating to commerce, inaugurated by the creation of the new government—the common umpire—because history informs us that the difficulties which had arisen prior to the adoption of the Constitution, and which would inevitably arise, were a main cause of, and reason for, the establishment of a government that should be vested with the powers necessary for the protection of commerce, and all those engaged in it, and under which industry and enterprise could safely develop the dormant resources of the whole country, protected against the laws of one state, invidiously discriminating in favor of its own citizens and against those of another or other states. (See the proceedings which led to ,the adoption of the Constitution. Elliot’s Debates, v. 1, pp. 122 to 155.) They show the great defects in the articles of confederation, for the want of power to regulate commerce, and from it to derive revenues. Efforts were made to correct the evils arising from conflicting systems and supposed interests of the states. Virginia, January 21,1786, appointed delegates to meet delegates of other states, “ to take into consideration the trade of the United States; to examine the relative situations and trade of the said states; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony, and to report to the several states such an act relative to this great object, as when Unanimously ratified by them, will enable the United States in Congress assembled, effectually to provide for the same.” (Id., 149.) New York, New Jersey, Pennsylvania and Delaware, appointed delegates who met the delegates of Virginia at Annapolis, in September, 1786. This convention made a report recommending a convention of all the states, the powers of the deputies to be extended “to other objects than those of commerce.” Congress concurred in the recommendation, and resolved that it was expedient that such convention be held, and appointed a time and place for holding it.

¡Now, although it was absolutely necessary for the success of this commercial system, that the states should not possess the power to pass laws impairing the obligation of contracts, or to make anything but gold and silver coin a tender in payment of debts, there was no necessity that the government, common to all, should be deprived of these powers, nor any reason why Congress should not possess them. On the contrary, there was every reason, in the nature of things, why such general government should possess these powers, and should fully exercise them for the common benefit of all the people—the nation, under circumstances that might arise; powers, as I have already said, possessed and exercised by all civilized independent nations, and, without which powers, a nation would be unable to protect itself from the greatest and most dangerous convulsions, and a large portion of its subjects from ruin. All independent governments have a vital interest in the prosperity of all their subjects, and in the increase of their wealth; and all wise governments are constantly vigilant in observing the operation of their laws of trade and commerce, changing, modifying and improving them, for the better protection of industry and the development and protection of wealth. The most favorable results, as experience has shown, generally follow from stability in the laws which have long established the relations between money and property, contracts or promises to pay money, and the money as it was when the promise was made. Hence, the depreciation of the coin, change in the mode of paying debts, and the thing in which the debt may be paid, have always been regarded as evils, or as an evidence of great national embarrassment, a calamity. And such changes are, by the moral code, unjustifiable, except in great emergencies. But the power to make such changes is not, for these reasons impeached. On the contrary, occasions do arise, when there

In. my opinion, the provision objected to in-the act in question, has a direct, legitimate and pertinent relation to the powers yested. in Congress over commerce. That the provision declaring the treasury notes authorized to be. issued “lawful., money and a legal tender in payment, of all- debts, public and-private, within the- United States, except, duties on imports, and- interest as aforesaid,” had, and- has,, a great, effect upon the commerce of. the. country, no one.will- question. Indeed,, the- complaint is that its effect was to appreciate values, thus extinguishing the previous relation between commercial property and-the precious metals. It. is.not denied.that its effect has been to stimulate- industry and thus increase production,, and impart greater activity to commerce. And, I think, it cannot be successfully denied that in. the absence of such a provision, under the circumstances'-then and now existing, the; commerce of the. country would have, received a withering, blow; industry and- production, instead of being active, would have, languished.

. Creditors insisting upon the discharge of their- debts in • something that could not.be procured from, or even- by, the banks, universal insolvency must have, ensued; and production, and therefore, commerce, must, have been, to say the-, least, greatly diminished. Even danger of these consequences, is-sufficient' for, my argument. I am. examining the question-, of the power of Congress, not whether the power was wisely exercised. It will not be denied, that in-the. absence of-such provision, property would have greatly depreciated in value, as compared with, “ gold, and silver coin,” and that commerce would have been thereby-greatly affected. Certainly such results might.have been reasonably apprehended; and- although Congress possessed the powers-1. have._ referred to, over com

How the United States government possesses as full and ample powers touching commerce as any nation that ever existed—certainly as to regulating it with foreign nations and among the several States; and this power is sufficiently ample to justify Congress in declaring what shall be receivable in the payment and discharge of debts. This power exists nowhere else in this country. The power over commerce with other nations and among the States is confined to Congress. It, of necessity, includes the power to prescribe the thing which shall be the common representative of commercial values. It is its duty so to prescribe for thé common benefit of' all the people who produce the means of, or things used in, commerce, and who, are engaged in it.

As to commerce, the people of the United States are substantially one nation. Their State governments háv'e little or no jurisdiction over it. They must look to Congress for protection. They have agreed that Congress shall regulate their commerce with foreign nations and among the States, and they have prohibited the States from enacting certain laws which would conflict with the fair and legitimate exercise of the power confided to Congress, the prohibition embracing all debts and all contracts.

The fact that Congress may establish “ uniform laws on the subject of bankruptcies throughout the United .States ” sup

As we have seen, there are some express limitations upon' the powers of Congress; those relating to commerce are, that “ no tax or duty shall be laid on articles exported from any State; no preference shall be given by any regulation of commerce, or revenue, to the ports of one State over those of another; nor shall vessels bound to and from one State, be obliged to enter, clear or pay duties in another.” These limitations do not affect the question we are considering. I conclude this view of the powers of Congress relating to commerce, by again referring to the rule in McCulloch v. State of Maryland, deduced from a consideration of the provision authorizing laws to be made to carry into execution the powers granted, viz., that the Constitution allows to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which- will

I have thus far considered- the- question under the. commercial powers of Congress., I will consider the question briefly, under the power to borrow money on the creditor the United, States. This: power does not. mean literally the .borrowing, and. receiving the thing called money. It. is; not. denied that. Com gress. may issue treasury notes and.' compel their acceptance by the creditors of. the government. Borrowing, money-' means-neither more nor less than raising supplies on the. credit.of. the. government.. The issuing and; paying out of treasury notes, may b.e a forced loan; to- the- government. But if they are. issued, and sold, in the - market, as stocks are, for the purpose-of raising- supplies, may not the government, in.addition to its-, promise to pay them, give to them a character- and qualities, which will command for them a higher price in the market ? As to stocks, it may increase- the interest,, prolong- the-time fon payment or redemption,, exempt them; from taxation, by itself or the States, and all for the purpose of enhancing their value,, and thus., increasing the. supplies..,

And so, I apprehend, Congress may, for the like purpose, make the treasury notes receivable in pay men*; of public dues; and in payment, of all- debts, public or private. Such qualities will give them greatly increased-, value. They will impart, to. them negotiability, circulation, All persons, and especiallythose owing debts, will accept, them, for. property which the government needs, because- they can be. used not only- in purchasing. property, but, in. payment.of debts; whether contracted before- or after the enactment of the law authorizing their issue., This quality-of satisfying debts;, undoubtedly -imparts:

Call the issuing of these treasury notes borrowing money or a forced loan, and the quality in them, making them receivable in payment of all debts, enhances their value and enables the government to realize from them a greater amount of supplies. The question is not, is this just or unjust to the people, or a certain class of the people. About this some may differ. The answer to such question is, the power being conceded, that it was submitted to Congress, and Congress decided it, and may reconsider it, and again decide. The courts only inquire and decide concerning the power.

Banks in this state are organized, and become incorporated under general laws, and the Constitution prohibits the legislature from passing any law sanctioning the suspension of specie payments by them. The legislature is empowered to require by law ample security for the redemption, in specie, of all bills or notes issued or put in circulation as money by such banks. The legislature had provided a system of security by deposits of bonds and mortgages, and State or "United States stocks, with a superintendent of the banking department, and for the sale of such securities and the redemption of such bills and notes when payment is refused by the banks in the “lawful money of the United States.” It is argued that the system results in a trust, and the creation of a trust fund, for the benefit of the billholders—the cestui que trusts; and that Congress cannot interfere with such trusts and the rights of the beneficiaries under it. It may be conceded that Congress cannot interfere with trusts so as to deprive beneficiaries of the enjoyment of the property charged with the trust, except as the taxing power may reach it in common with all other property. I speak of trusts generally. But may there not be trusts which Congress may affect and make void by legis

Now, if I am right in the position that Congress could make the treasury notes in question a legal tender in payment of all debts, public and private, when a bank tenders such treasury notes in payment of its circulating notes, it at once discharges its debts, and there will be nothing for the trust to operate upon, or rather the power of the trustee to dispose of the trust property will be suspended.

Assume that the object of the securities is .to secure the payment of the bank notes in specie, or rather in coined money (for this is the meaning of the word “ specie,” as used in the Constitution), and the securities are brought to a public sale, and the purchaser bids a certain number of dollars, he will owe the superintendent that number of dollars, which debt may be discharged by a tender of treasury notes. It may be said that he will, as a trustee, only be authorized to make sale of the securities for specie dollars; that is, that he may exchange a certain amount of securities for a certain number of specie dollars. It must be literally an exchange, for if he takes the bid or promise to pay a certain number of dollars in specie, such promise may be satisfied by tendering a like number of dollars in treasury notes.

It is to be noticed, that the legislature does not grant charters in this State annexing conditions to the grant, but the banks are organized under general laws, containing certain requirements with which the banks in this case complied, thus giving them a corporate existence. They also complied with the requirement of the legislature to furnish security for the re

I concur in the opinions of my brethren, touching the power to borrow money upon the credit of the United States, and refer to their more full and complete arguments upon that power.

concurred with the majority of the court, on the ground that the principle involved in the cases had been determined in favor of the validity of the act of Congress by the Supreme Court of the United States, in McCulloch v. The State of Maryland ( 4 Wheat., 316 ), and the late case of The People, on the relation of the Bank of Commerce, v. The Commissioners of Taxes of the City of New York (2 Black U. S., 620.)

(dissenting.) The subject of private contracts, embracing the manner in which they may be made, and in which they may be discharged, lies within the domain of State legislation. The States were distinct political communities at the formation of the Constitution, retaining, notwithstanding the confederation under which they associated during the

It seemed necessary to state these principles, for, although no question has been made respecting them, they have an important bearing upon the controversy which we are called upon to decide, and, indeed, form the basis of all just reasoning, upon the powers of the general government. The mortgage executed by Bowne and his wife to the defendant, the alleged payment of which was in question in this case, was a lawful contract, by which real estate in this State was conveyed to the latter to secure the payment of a certain amount of money. It is stated to be payable in lawful money of the United States of America, but I lay no stress upon that expression. It was a security for the payment of money, and that is all which seems to me important. The lands thus conveyed by way of mortgage have been transferred to the plaintiff subject to the lien; and he claims a right to pay the debt and redeem the incumbrance, by giving to the creditor, the defendant, an amount equal to the principal and interest, in the treasury notes of the United states, issued pursuant to the late act of Congress. The defendant refuses to accept these notes as payment, and the question is, whether he is compellable by law to do so. The contract was a valid one under the laws of this State, and it calls for the payment of a certain sum of money. The question as to what shall amount to payment or performance, is, prima facie, one which is to be determined by the State laws. The federal Constitution, which is a part of the law of the State, prohibits anything being made a tender in payment of debts, by State authority, but gold and silver coin. It is clear, therefore, that the offer of the treasury notes was not a lawful tender of payment, unless the act was a legitimate measure for the execution of one or more of the powers which the Constitution has conferred upon Congress. That act declares in express terms that the treasury notes of the class which were offered to the defendant, shall be lawful money and a legal tender for all debts, public and

It has been argued that there is no warrant in the Constitution for the issue of fede’ral securities for the purpose of being used as a currency, though unaccompanied with a provision making them a legal tender among individuals. If this position could be established, the notes which were tendered in this case being illegal, would be ineffectual for any purpose. In the view I have been compelled to take of the principal question, this subordinate one is not necessary to be considered. It is proper, however, to say that it could scarcely become a judicial question in any case. The right to issue the obligations of the government- for money borrowed, or for .property or services furnished for national purposes is not and cannot be questioned. The form and denomination of such securities are matters which belong to the discretion of the government making them; and if an issue could be raised upon the intent to have them circulate as the representative of money, I should still think that it would be legally unobjectionable to so accommodate them to the business wants of the community, as to make it the interest of successive holders to continue them in circulation, and thus benefit the ■treasury by deferring the time of their presentment for payment. It hasUeen urged that such issues of paper would be an emission of bills of credit, as understood, at the time the Constitution was framed, and that the making of them was expressly forbidden to the States, and not committed to Con

The express power committed to the general government “to coin money, regulate the value thereof, and of foreign coin,” and the denial of that po.wer to the States, may . be considered as a further qualification of the State jurisdiction over private contracts." Without these provisions the- right to determine what should constitute money in transactions between

I shall spend no time in proving that the coining power referred to relates, and is limited, to the fabrication and regulation of coins properly so called. I have carefully considered the ingenious argument on that subject, which has been submitted orally and in writing by one of the counsel who maintain the validity of the legal tender provision; but those suggestions have not created in my mind the slightest doubt that the language is to be understood in its most obvious and natural sense. Coins are, in our languáge, pieces of metallic money; and the coining of money is the formation of such pieces by such mechanical means as are appropriate to such an operation. There is not the smallest reason to suppose that the word was used in the Constitution in any non-natural, recondite or figurative sense.

The language is, to my mind, so distinct and precise as not to admit of reasoning. But if it were in any manner equivocal, the connection in which it is found in the several places where it is used in the Constitution would determine its meaning to be such as I have mentioned. In the principal clause the value of the coin to be made is to be regulated by Congress ; but this could not be predicated of the obligations of individuals or of governments, the value of which is either -the absolute amount stipulated to be paid, or their worth, arising out of the 'fluctuating considerations of the pecuniary means and ability of the promisors, and the interest to be paid, and the time of payment of the principal—the last of which circumstances must vary every day by the efflux of time. The value of foreign coin is also to be regulateds

Let us then consider whether the power to make these notes a legal tender results from any of the express powers conferred on Congress. Among the attributes expressly conferred is the very extensive power to regulate commerce; and the enactment of the legal tender provision has sometimes been referred to that clause. But it has no bearing upon the transactions of citizens, which are limited to a single State; the power relating only to commerce with foreign nations, and among the several States, and with the Indian tribes. This enactment does not propose to regulate foreign or inter-state commerce, or to be in any sense a regulation of that subject; It compels the citizens in all places, and at all times, and under all circumstances to receive the treasury notes in payment of debts, whether these debts had any connection with a commercial transaction, or were wholly foreign to and independent of it. Whether a law introducing the treasury notes into foreign and inter-state commerce, and compelling their reception as money when offered in connection with transactions of that nature, could be sustained, will perhaps depend upon some considerations, to which I shall presently advert.

It may be said that any measure which tends to promote . internal traffic and facilitate domestic exchanges would inci

I concede that it is not incumbent upon those who argue for the validity of the legal tender clause to select any one express power and to maintain that the provision is a legitimate execution of that power. They may group together any number of these grants of legislative authority, and if the right to enact that provision is fairly deducible from any or all of them — their position is established. The power to raise money for raising and maintaining a public force by land and by sea, to pay the public debts, and indeed nearly all of the enumerated powers, require or at least suppose the necessity of the obtaining, possessing, managing and disbursing moneys to a large and indefinite amount. No idea can be formed of the government of a great country, though the power of legislation should be restricted to external affairs, which would not require such government to be an immense dealer in money and commodities of almost every kind. The strong public necessity for obtaining pecuniary means to carry on the government and to effectuate the great purposes for which it was established, have not been and cannot be overstated, whether we advert to the imminent crisis .which is this day upon us, or consider it in its usual condition of peace and tranquility. It was quite appropriate to advert to the present condition of the country to show that the necessity for obtaining funds may be so sudden, fluctuating and spasmodic that the public needs will not wait upon the regular receipts of revenue, but must sometimes be met by extraordinary exertions, and entail pecuniary sacrifices upon the public and individuals. Still the Constitution furnishes the measure of the national authority, in war as in peace; and, as judges, our duties are limited to the construction of that instrument, according to our best judgment"

It is a circumstance connected with the inquiry, though not material to the view which I take, that by the arrangements of the act the notes are not payable in coin ; for the quality which makes them receivable for all public and private debts, authorizes the government to redeem them in other notes of the same kind, so that they are. to constitute a medium of payment and exchange which is to be quite distinct from gold and silver money and not convertible into it, and which, by the well known laws of currency, will displace the latter from circulation, and will cause it to depreciate, in comparison with that standard, in proportion to the amounts which may be issued. To force them upon the creditor as payment contrary to the general laws of the States, which do not authorize debtor's thus to discharge their obligations, is to enter into the domain of the State legislature and to supersede, to that extent, the operation of the State laws. This is not necessarily a fatal objection, for if the provision annexing the quality of legal tender to the notes is a necessary and proper law for carrying into execution the powers expressly conferred upon Congress, and is not forbidden by any part of the Constitution, it changes or abrogates, by virtue of the pre-eminence attributed to federal legislation, when constitutional, all State laws and constitutions so far as the exigency of the case may require.

We are to consider, then, whether the provision in question is necessary and proper to the execution of the various enumerated powers w'hich require the obtaining and disbursement of moneys for national purposes. And we observe, in the first place, that certain means are specifically provided by the Constitution for obtaining funds for public objects. Congress

Then as to the express power to borrow money on the credit of the United States, which is the delegation of authority

But it is a step far beyond this to require that all persons shall receive them in payment of all manner of obligations. This has no natural relation to the contract of borrowing. The parties who are thus obliged to receive the borrower’s obligations are not parties to the loan, and have no necessary connection with it. True, they are subjects, for some purposes, of the same political sovereignty which is the borrowing party, and if that sovereignty was universal in its objects, and was not restrained by constitutional limitations, the duty of receiving the obligations could be rightfully imposed like any other burden created by legislative authority. But private contracts and the manner in which they are to be performed and discharged or enforced are, as has been stated, embraced in the reserved rights of the States, and Congress has no general legislative power over the subject. If they have any power what- . ever, it is not direct, but oblique or collateral. If, in the execution of the enumerated powers, it becomes necessary and proper to enter upon the domain of State legislation, the State laws must yield. This may be made more plain by cases which may be supposed. The States have the general right to regulate the interest upon money loaned. Suppose a State legislature to enact that none of its citizens should loan money to any party, private or public, at a rate of interest above five per cent, and that Congress, considering the rate too low, should provide by law that seven per cent might be lawfully

The power which the Constitution confers upon the government to affect loans, is not one. to be exercised in invitum, like the taxing power. It requires only a party willing to advance the funds upon the terms which may be offered, arid it does not imply anything coercive as to .any one. It requires a consenting party only; unlike the taxing power which implies legal coercion, and does not-seek the consent of,any other party.

But for a single authority, which I will now mention, I should .think it very plain that the power to borrow money on the credit of the United States, did not authorize Congress to compel individuals to accept treasury notes in discharge of -private debts payable in money.

In Weston v. The City Council of Charleston. ( 2 Pet., 449 ), it was held that the power .to borrow money- on .the credit of the

Hence, I am unable to find the ground for further intrusion into the field of State legislation respecting the money to be used in private transactions. The federal legislation respecting coined money is absolutely binding upon all the people of the Union, and, in my opinion, it is exclusive of any power, residing anywhere, to make any other description of money. The subject with which the convention was dealing was that of money which was to be authentic and authoritative everywhere throughout the Union. It prescribed coins, to be made by federal authority as such money, and was silent respecting any and every other kind of currency. The argument expressio unius exclusio alterius applies, and would be of great force if there were no other, but a reason equally strong to my mind is, that the convention was acting upon a subject belonging generally to State jurisdiction, and cannot, with propriety, be understood as going beyond the provision actually made. The prohibition upon the State governments to coin money affords an invincible inference that the coins to be struck under the authority of Congress, were to be the only authentic money to be used in the United States. Certainly

But the prohibition .upon the States against making anything but gold and silver coin a tender in payment of debts, seems to me also conclusive upon the subject. The restraint,, it must be remembered, is upon the sovereignty to whose, jurisdiction this subject of debts and their payment belongs. The gpneral government, as I have shown, had no power over that subject, except as it may be deduced incidentally from some express power. It should be further borne in mind, that the prohibitory mandate is not addressed to the State legislature alone, but to the judges as well. ISTo authority of the States, legislative or judicial, can, by the terms of this clause, admit anything but coin fabricated from the precious metals to be a valid payment. It is to be observed also, that the inhibition is not limited to values created by State authority. That subject was provided against by the language forbidding the States to emit bills of credit. The word “anything ” embraces all imaginable subjects of which payment might be predicated, irrespective of their material substance and of the authority by which they were created. To constitute payment there must be coins, that is, stamped pieces of

An argument has been somewhat pressed upon us, arising out of the action of Congress upon the subject of legal tender. After providing for the establishing of the mint and regulating the amounts of pure gold and silver to be contained in, and the value of the various coins to be struck, the legislature has, at various times, from an early period of the government, declared those coins to be a legal tender for the payment of all debts and demands. The argument is, that there is nothing in the Constitution expressly enabling Congress to declare any thing to be a legal tender, and yet that body has, with universal public acquiescence, passed the several acts referred to. Hence it is insisted, that the power of establishing a legal tender has been universally conceded to exist, and if the power exist, it is within the legislative discretion to determine

The word money, as used in the Constitution, ex vi termini, implies all that is expressed by the words legal tender, and without the use of these words in the acts of Congress, the coins struck at*the national mint, and the foreign coins, the value of which has been regulated by Congress, could be used in forced payments in all cases. The express provisions respecting legal tender are employed for the purpose of explanation, and are only declaratory of the effect of the national currency when offered for the purpose of payment. In reference to what had been said respecting the ability of Congress to debase the national currency, I am of the opinion that the several clauses respecting coining and what' may be made a legal tender by the States, together amount to a direction that the money to be created under the clause respecting coining, shall be composed of the precious metals, as a principal ingredient, and that coins not composed of these substances cannot constitutionally be made national money or legal tender.

I have examined this question, and have come to a conclusion upon it, as though it involved no other consequences than the recovery or the failure to recover the small sum of money claimed by the defendant, and I do not know of any other method of considering a judicial question involving pecuniary considerations. The extended and very able discussion at the bar^ in which considerations of a public character have been

I shall be well' satisfied if a majority of my brethren, and the federal court in which our decision will ultimately be reviewed, can reconcile the legislation which the defendant challenges with a reasonable interpretation of the Constitution of the United States. It is not to be denied that it constitutes a part of a plan of public finance which, whether wisely organized or not, it is extremely important in the present crisis to maintain if it can properly be done. If my sense of duty would allow me to decide the case, as I’should wish the law under the circumstances of this moment temporarily to be, I would unite in a judgment which should establish the validity of these legal tender notes; for the preservation of the federal Union, which is said to be involved, is the most ardent, I may say passionate desire of my heart; and no one, I think, can honestly pretend that this "can be accomplished except by the vigorous employment of the armed force of the nation. To that purpose, the realization and expenditure of immense pecuniary resources' are plainly indispensable. Ho man can have a stronger sense of the absolute causelessness, nay, the utter wickedness of the insurrection than that which I entertain—or of the duty of every citizen, whether in public office or a private station, to yield to the constituted authorities upon all questions of policy or expediency, not only implicit obedience, but a sincere and generous confidence and cooperation.

But we are placed here to determine the law as we understand it to be, in the controversies which are brought'before us, and I should forfeit my own self-respect if I could unite in a judgment affirming the constitutional validity of the legislation in question, believing, as I must, that its provisions are repugnant to the letter and spirit of the Constitution.

Seldem, J., concurred in the conclusions of Demio, Ch. J.

Judgment affirmed in the first case, and reversed in the second.