capacity for right reasoning on the part of individual judges. As might be anticipated, a considerable diversity of opinion exists among the courts as to the "limits (to use their own expression) allowed to judicial discretion in creating new precedents."

One class holding precedents in very light esteem, when in conflict with their view of the law; holding that precedents, at most, are but illustrations of principles, and, failing in this, they should be swept away. On the other hand, another class hold they cannot follow precedents too closely; that they are as firmly bound by their authority as the "pagan deities were supposed to be bound by the decrees of fate."

As a representative of the latter class, stands Lord Kenyon, one of the very ablest of the English judges, who declared that he wished "servilely to follow in antiquas vias;" and that as he could not legislate, he could, by his industry, discover what his predecessors had done, and he would tread in their footsteps; whilst at the head of the former class stands Lord Mansfield, who, to use the classic language of Chancellor Kent, "felt himself but little embarrassed with the disposition of the elder cases, when they came in his way to impede the operation of his enlightened and cultivated judgment."

The true path is doubtless between the two; we would not feel quite safe with too bold an innovator, one who treated lightly the wisdom of the ancient sages, nor yet would our civilization retain its progress or elasticity if the courts "servilely" followed the old precedents, however illustrious may have been their authority.

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But some of the courts, both in this country and in England, have not hesitated to boldly claim such powers. In Bonham's case, 8 Rep. 118, Lord Coke says an act of parliament against common right and reason, or repugnant or impossible to be performed, will be controlled and adjudged void by the common law. Lord Holt lays down the same dotrine in The City of London v. Wood, 12 Mod. 687. The same doctrine was acted upon by the Supreme Court of Maryland, 1 Bay's R. 252, holding substantially that there was a higher power than parliament or legislatures, and that the courts were the depositories of it.

As an illustration of an attempt to define the exercise of this power, we quote from the opinion by Lord Mansfield in 4 Borrows, 2539. He says: 666 "Discretion,' when applied to a court of law, means sound discretion, guided by reason and not by humor. It must not be arbitrary, vague and fanciful, but legal and regular." This statement, we think, concedes that this power is not capable of definition, which is an essential element of sovereign or ultimate power. But this, perhaps, more properly belongs to another branch of our topic, the origin and legitimacy of this power, which we will examine in another article.

In arguing a case before Judge Straub at Cincinnati the other day, an "Athenian barrister" made use of the following beautiful figure of speech: "Your honor is sitting there on the binch as the represintative of the abstract figger of Justis, which is supposed to be bloind, howlding the scales evenly balanced betwane man and man and woman and woman,"

DECISION OF THE UNITED STATES SUPREME COURT ON THE LEGAL TENDER ACT. SUSAN P. HEPBURN and another v. HENRY A. GRISWOLD, in error to the Court of Appeals of the State of Kentucky.

[The legal tender act, passed February 1862, is inoperative as to all contracts for the payment of money made prior to that date, and such contracts can only be discharged by the payment of gold or silver coin.]

CHASE, C. J.-The question presented for our determination by the record in this case is, whether or not the payee or asignee of a note made before the 25th of February, 1862, is obliged by law to accept in payment United States notes equal in nominal amount to the sum due, according to its terms when tendered by the maker or other party bound to pay it. And this requires, in the first place, a construction of that clause of the first section of the act of Congress passed on that day, which declares the United States notes, the issue of which was authorized by the statute, to be a legal tender in payment of debts. The

entire clause is in these words: "And such notes herein authorized shall be receivable in payment of all taxes, internal duties, excises, debts, and demands of every kind due to the United States, except duties on imports and demands against the United States of every kind whatever, except for interest upon the bonds and notes, which shall be paid in coin; and shall also be lawful money and a legal tender in payment of all debts, public or private, within the United States, except duties on imports and interest as aforesaid" (12th U. S. Statutes, 345). This clause has already received much consideration here, and this Court has held that, upon a sound consideration, neither taxes imposed by State legislation (Lane County v. Oregon, 7 Wallace, 71), nor demands upon contracts which stipulate in terms for the payment or delivery of coin or bullion (Bronson v. Rodes, 7 Wallace, 229; Butler v. Hartwitz, 7 Wallace, 258), are included, by legislative intention, under the description of debts, public and private.

WHAT IS TO BE DECIDED-COIN v. CURRENCY. We are now to determine whether this description embraces debts contracted before as well as after the date of the act. It is an established rule for the construction of statutes that the terms employed by the Legislature are not to receive an interpretation which conflicts with acknowledged principles of justice and equity, if another sense, consonant with those principles, can be given to them. But this rule cannot prevail where the intent is

clear, except in the scarcely supposable case where a statute sets at naught the plainest precepts of morality and social obligation. Courts must give effect to the clearly ascertained legislative intent, if not repugnant to the fundamental law ordained in the Constitution. Applying the rule just stated to the act under consideration there appears to be strong reason for construing the word "debts" as having reference only to debts contracted subsequent to the enactment of the law: for no one will question that the United States notes which the act makes a legal tender in payment are essentially unlike in nature, and being irredeemable in coin are necessarily unlike in value, to the lawful money intended by parties to contracts for the payment of money made before its passage. The lawful money then in use and made a legal tender in payment, consisted of gold and silver coin. The currency in use under the act and declared by its terms to be lawful money and a legal tender, consists of notes or promises to pay impressed upon paper prepared in convenient form for circulation, and protected against counterfeiting by suitable devices and penalties. The former possess intrinsic value determined by the weight and fineness of the metal; the latter have no intrinsic value, but a purchasing value determined by the quantity in circulation, by general consent to its currency in payments, and by opinion as to the probability of redemption in coin. Both derive, in different degrees, a certain

additional value from their adaptation to circulation by the form and impress given to them under national authority, and from the acts making them respectively a legal tender. Contracts for the payment of money made before the act of 1862 had reference to coined money, and could not be discharged, unless by consent, otherwise than by tender of the sum due in coin. Every such contract, therefore, was, in legal import, a contract for the payment of coin.

LAWS OF CURRENCY.

There is a well-known law of currency, that notes or promises to pay, unless made conveniently or promptly convertible into coin at the will of the holder, can never, except under unusual and abnormal conditions, be at par in circulation with coin. It is an equally well-known law that depreciation of notes must increase with the increase of the quantity put in circulation, and diminution of confidence in the ability or disposition to redeem. Their appreciation follows the reversal of these conditions. No act making them a legal tender can change materially the operations of these laws. Their force has been strikingly exemplified in the history of the United States notes. Beginning with a very slight depreciation when first issued in March, 1862, they sunk in July, 1864, to the rate of $2.85 for a dollar in gold, and then rose until recently $1.20 in paper became equal to a gold dollar. Admitting, then, that prior contracts are within the intention of the act, and assuming that the act is warranted by the Constitution, it follows that the holder of a promissory note made before the act for $1,000, payable as we have just seen, according to the law and according to the intent of the parties, în coin, was required when depreciation reached its lowest point to accept in payment 1,000 note dollars, although with the 1,000 coin dollars due under the contract he could have purchased on that day 2,850 such dollars. Every payment since the passage of the act of a note of earlier date has presented similar though less striking features. Now, it certainly needs no argument to prove that an act compelling acceptance in satisfaction of any other than stipulated payment alters arbitrarily the terms of the contract and impairs its obligation, and that the extent of impairment is in proportion to the inequality of the payment accepted under the constraint of the law to the payment due under the contract. Nor does it need argument to prove that the practical operation of such an act is contrary to justice and equity. It follows that no construction which attributes such practical operation to an act of Congress is to be favored, or, indeed, to be admitted, if any other can be reconciled with the manifest intent of the Legislature.

CONSTRUCTION OF THE LAW.

What, then, is that manifest intent? Are we at liberty, upon a fair and reasonable construction of the act, to say that Congress meant that the word "debts," used in the act, should not include debts contracted prior to its passage? In the case of Bronson agt. Rodes, we thought ourselves warranted in holding that this word used in the statute does not include obligations created by express contract for the payment of gold and silver, whether coined or in bullion. This conclusion rested, however. mainly on the terms of the act; which not only allow, but require, payments in coin by or to the Government, and may be fairly considered independently of considerations belonging to the law of contracts for the delivery of specified articles as ganctioning special private contracts for like payments, without which indeed the provisions relating to Government payments could hardly have practical effect. This consideration, however, does not apply to the matter now before us. There is nothing in the terms of the act which looks to any difference in its operations on different descriptions of debts, payable generally in money, that is to say, in dollars and parts of a dollar. These terms, on the contrary, in their obvious import include equally all debts, not specially expressed to be payable in gold or silver, whether arising under past contracts, and already due, or arising under such contracts and to become due at a future day, or arising and be

coming due under subsequent contracts. A strict and liberal construction indeed would, as suggested by Mr. Justice Story, in respect to the same word used in the Constitution (1 Story on Constitution, 921), limit the word "debts" to debts existing; and if this construction cannot be accepted, because the limitations sanctioned by it cannot be reconciled with the obvious scope and purpose of the act, it is certainly conclusive against any interpretations which will exclude existing debts from its operation. The same conclusion results from the exception of interest on loans and duties on imports, from the effect of the legal tender clause. This exception affords an irresistible implication that no description of debts, whenever contracted, can be withdrawn from the effect of the act if not included within the terms of the reasonable intent of the exception. And it is worthy of observation, in this connection, that in all the debates to which the act gave occasion in Congress, no suggestion was ever made that the legal tender clause did not apply as fully to contracts made before, as to contracts made after, its passage. These considerations seem to us conclusive. We do not think ourselves at liberty, therefore, to say that Congress did not intend to make the notes authorized by it a legal tender in payment of debts contracted before the passage of the act.

THE QUESTION OF CONSTITUTIONALITY.

We are thus brought to the question whether Congress has power to make notes issued under its authority a legal tender in payment of debts which, when contracted, were payable in gold and silver coin. The delicacy and importance of this question has not been overrated in the argument. This Court always approaches the consideration of questions of this nature reluctantly, and its constant rule of decision has been, and is, that acts of Congress must be regarded as constitutional unless clearly shown to be otherwise. But the Constitution is the fundamental law of the United States; by it the people have created a government, defined its powers, prescribed their limits, distributed them among the different departments, and directed in general the manner of their exercise. No department of the government has any other powers than those delegated to it by the people. All the legislative power granted by the Constitntion belongs to Congress, but it has no legislative power which is not thus granted; and the same observation is equally true in its application to the executive and judicial powers granted respectively to the President and the courts. All these powers differ in kind, but not in source or in limitations. They all arise from the Constitution, and are limited by its terms. It is the function of the judiciary to interpret and apply the law between parties as they arise for judgment. It can only declare what the law is, and enforce by proper process the law thus declared. But in ascertaining the respective rights of parties it frequently becomes necessary to consult the Constitution, for there can be no law inconsistent with the fundamental law. No enactment not in pursuance of the authority conferred by it can create obligations or confer rights, for such is the express declaration of the Constitution itself, in these words: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges of every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." Not every act of Congress, then, is to be regarded as the supreme law of the land; nor is it by every act of Congress that the judges are bound. This character and this force belong to such acts as are made in pursuance of the Constitution. When, therefore, a case arises for judicial determination, and the decision depends on the alleged inconsistency of a legislative provision with the fundamental law, it is the plain duty of the court to compare the act with the Constitution, and if the former cannot, upon a fair construction, be reconciled with the latter, to give effect to the Constitution rather than the statute. This seems so plain that it is impossible to make it plainer by argument; if it be otherwise, the Constitution is not the supreme law. It is neither necessary nor useful in any case to inquire whether or not any act of Congress was passed in pursuance of it, and the oath which every member of this Court is required to take, that he "will administer justice without respect to persons, and do equal right to the poor and the rich,

and faithfully perform the duties incumbent upon him to the best of his ability and understanding agreeably to the Constitution and laws of the United States," becomes an idle and unmeaning form.

THE QUESTION OF PRIVATE RIGHTS.

The case before us is one of private rights. The plaintiff in the Court below sought to recover of the defendants a certain sum expressed on the face of a promissory note. The defendants insisted on the right, under the act of February 25, 1862, to acquit themselves of their obligation by tendering in payment a sum nominally equal in United States notes, but the note had been executed before the passage of the act, and the plaintiff' insisted on his right under the Constitution, to be paid the amount due in gold and silver, and it has not been and cannot be denied that the plaintiff was entitled to judgment according to his claim, unless bound by a constitutional law to accept the notes as coin. Thus, two questions were directly presented. Were the defendants relieved by the act from the obligation assumed in the contract? Could the plaintiff be compelled by a judgment of the Court to receive in payment a currency of a different nature and value from that which was in the contemplation of the parties when the contract was made? The Court of Appeals resolves both questions in the negative, and the defendants seek the reversal of that judgment by writ of error.

THE MAIN QUESTION TO BE DECIDED.

It becomes our duty, therefore, to determine whether the act of February 25, 1862, so far as it makes United States notes a legal tender, in payment of debts contracted prior to its passage, is constitutional and valid or otherwise. Under a deep sense of our obligation to perform this duty to the best of our ability and understanding, we shall proceed to dispose of the case presented by the record. We have already said, and it is generally, if not universally, conceded, that the government of the United States is one of limited powers, and that no department possesses any authority not granted by the Constitution. It is not necessary, however, in order to prove the existence of a particular authority, to show a particular and express grant. The design of the Constitution was to establish a government competent to take direction and administration of the affairs of a great nation, and at the same time to mark by sufficiently definite lines the sphere of its operations. To this end it was needful only to make express grants of general powers, coupled with a further grant of such incidental and auxiliary powers as might be required for the exercise of the powers expressly granted. These powers are necessarily extensive. It has been found, indeed, in the practical administration of the government, that a very large part, if not the largest part, of its functions have been performed in the exercise of powers thus implied. But the extension of power by implication was regarded with some apprehension by the wise men who framed, and by the intelligent citizens who adopted, the Constitution. This apprehension is manifest in the terms by which the grant of incidental and auxiliary power is made. All powers of this nature are included under the description of "power to make all laws necessary and proper for carrying into execution the powers expressly granted to Congress or vested by the Constitution in the government, or in any of its departments or officers."

The same apprehension is equally apparent in the Tenth Article of the Amendments, which declares that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or the people." We do not mean to say that either of these constitutional provisions is to be taken as restricting any exercise of power, fairly warranted by the legitimate derivation from one of the enumerated or express powers. The first was undoubtedly introduced to exclude all doubt in respect to the existence of implied powers, while the words necessary and proper were

intended to have a "sense," to use the words of Mr. Justice Story, "at once admonitory and directory," and to require that the means used in the execution of an express power should be appropriate to the end. (1 Story on Cons., 142, par. 1,253.)

The second provision was intended to have a like admonitory and directory sense, and to restrain the limited Government 95

tablished under the Constitution from the exercise of powers not clearly delegated or derived by just inference from powers so delegated. It has not been maintained in argument, nor indeed would any one, however slightly conversant with constitutional law, think of maintaining, there is in the Constitution any express grant of legislative power to make any description of credit currency a legal tender in payment of debts. We must inquire, then, whether this can be done in the exercise of an implied power. The rule for determining whether a legislative enactment can be supported as an exercise of an implied power was stated by Chief Justice Marshall, speaking for the whole Court in the case of McCulloch agt. The State of Maryland (4 Wheaton, 421); and the statement then made has ever since been accepted as a correct exposition of the Constitution. His "Let the end be legitimate, let it be within words were these: 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," and in another part of the same opinion, the practical operation of this rule was thus illus trated. Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its power, pass laws for the accomplishment of objects not intrusted to the Government, it would be the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land; but where the law is not prohibited, and is really calculated to effect one of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and tread on legislative ground. (Ibid. 423.) It must be taken, then, as finally settled, so far as judicial decisions can settle any thing, that the words all laws necessary and proper for carrying into execution" powers expressly granted or vested have, in the Constitation, a sense equivalent to that of the words, "laws not absolately necessary, indeed, but appropriate and plainly adapted to constitutional and legitimate ends-laws not prohibited, but consistent with the letter and spirit of the Constitution - laws really calculated to effect the objects intrusted to the Government." The question before us, then, resolves itself into this: Is the clause which makes the United States notes a legal tender for debts contracted prior to its enactment a law of the description stated in the rule? It is not doubted that the power to establish a standard of value, by which all other values may be measured, or, in other words, to determine what shall be lawful money and a legal tender, is, in its nature and of necessity, a governmental power. It is in all countries exercised by the Government. In the United States, so far as it relates to the precious metals, it is vested in Congress, by the grant of the power to coin money. But can a power to impart these qualities to notes or promises to pay money, when offered in discharge of pre-existing debts, be derived from the coinage power or from any other power expressly given? It is certainly not the same power as the power to coin money, nor is it in any reasonable satisfactory sense an appropriate or plainly adapted means to the exercise of that power, nor is there more reason for saying that it is implied in, or incidental to, the power to regulate the value of coined money of the United States or of foreign coins. This power of regulation is a power to determine the weight, purity, form, and impression of the several coins and their relation to each other, and the relations of foreign coins to the monetary unit of the United States. Nor is the power to make notes a legal tender the same as the power to issne notes to be used as currency. The old Congress, under the articles of confederation, was clothed by express grant with the power to emit bills of credit, which are in fact notes for circulation as currency, and yet that Congress was not clothed with power to make their bills a legal tender in payment. And this Court has recently held that Congress, under the Constitution, possesses the same power to emit bills or notes as incidental to other powers, though not denominated among those expressly granted, but it was expressly declared at the same time that this decision concluded nothing on the question of legal tenders. Indeed we are not aware that it has ever been claimed that the

power to issue bills or notes has any identity with the power to make them a legal tender; on the contrary the whole history of the country refutes that notion.

STATE CONTROL OVER BILLS FOR CIRCULATION.

The States have always been held to possess the power to authorize and regulate the issue of bills for circulation by banks or individuals, subject, as has been lately determined, to the control of Congress, for the purpose of establishing and securing a national currency; and yet the States are expressly prohibited by the Constitution from making any thing but gold and silver coin a legal tender. This seems decisive on the point that the power to issue notes, and the power to make them a legal tender, are not the same power, and that they have no necessary connection with each other. But it has been maintained in argument that the power to make United States notes a legal tender in payment of all debts is a means appropriately and plainly adapted to the execution of the power to carry on war, of the power to regulate commerce, and of the power to borrow money. If it is, and is not prohibited nor inconsistent with the letter or spirit of the Constitution, then the act which makes them such legal tenders must be held to be constitutional.

THE WAR.

Let us first inquire whether it is an appropriate and plainly adapted means for carrying on war. The affirmative argument may be thus stated: Congress has power to declare and provide for carrying on war. Congress has also power to emit bills of credit, or circulating notes, receivable for Government dues, and payable, so far at least as parties are willing to receive them, in discharge of Government obligations. It will facilitate the use of such notes in disbursements to make them a legal tender in payment of existing debts; therefore, Congress may make such notes a legal tender. It is difficult to say to what express power the authority to make notes a legal tender in the payment of debts pre-existing in contracts may not be upheld as incidental, upon the principles of this argument. Is there any power which does not involve the use of money? and is there any doubt that Congress may issue and use bills of credit as money in the execution of any power? The power to establish postoffices and post-roads, for example, involves the collection and disbursements of a large revenue. Is not the power to make notes a legal tender as clearly incidental to this power as to the war power? The answer to this question does not appear to us doubtful. The argument, therefore, seems to prove too much. It carries the doctrine of implied powers very far beyond any extent hitherto given to it. It asserts that whatever in any degree promotes an end within the scope of a general power, whether in the correct sense of the word "appropriate" or not, may be done in the exercise of an implied power. Can this proposition be maintained? It is said that this is not a question for the Court deciding a cause, but for Congress exercising the power. But the decisive answer to this is that the admission of a legislative power to determine finally what powers have the described relation as means to the execution of other powers plainly granted, and then to exercise absolutely and without liability to question, in cases involving private rights, the powers thus determined to have that relation, would completely change the nature of American Government. It would convert the government, which the people ordained as a government of limited powers, into a government of unlimited powers; it would obliterate every criterion which this Court, speaking through the venerated Chief Justice, in the case already cited, established for the determination of the question, whether legislative acts are constitutional or unconstitutional. Undoubtedly among means appropriate, plainly adapted, really calculated, the Legislature has unrestricted choice; but there can be no implied power to use means not within this description. Now, then, let it be considered what has actually been done in the provision of national currency. In July and August, 1861, and February, 1862,

the issue of $60,000,000 in United States notes payable on demand was authorized (12 U. S. Statutes, 259, 313, 338). They were made receivable in payments, but were not declared a legal tender until March, 1862 (12 U. S. Statutes, 370), when the amount in circulation had been greatly reduced by receipt or cancellation. In 1862 and 1863 (12 U. S. Statutes, 345, 532, 709), the issue of $450,000,000 in United States notes payable not on demand, but in effect at the convenience of the Government, was authorized, subject to certain restrictions. As to $50,000,000, these notes were made receivable for the bonds of the national loans for all debts due to or from the United States, except duties on imports and interest on the public debt, and were also declared a legal tender. In March, 1863 (12 U. S. Statutes, 711), the issue of notes for parts of a dollar was authorized to an amount not exceeding $50,000,000. These notes were not declared a legal tender, but were made redeemable under regulations to be prescribed by the Secretary of the Treasury. In February, 1863 (12 U. S. Statutes, 669), the issue of three hundred millions of dollars in notes of National Banking Associations was authorized. These notes were made receivable to the same extent as United States notes, and provision was made to secure their redemption; but they were not made a legal tender. These several descriptions of notes have since constituted, under the various acts of Congress, the common currency of the United States. The notes which were not declared a legal tender have circulated with those which were so declared, without unfavorable discrimination. It may be added as a part of the history that other issues bearing interest at various rates were authorized and made a legal tender, except in redemption of bank notes for face amounts, exclusive of interest. Such were the one and two years' five per cent notes, and the three years' compound interest notes. (13 U. S. Statutes, 218. 245.) These notes never entered largely or permanently into the circulation, and there is no reason to think that their utility was increased or diminished by the act which declared them a legal tender for the face amount. They need not be further considered here. They serve only to illustrate the tendency, remarked by all who have investigated the subject of paper money, to increase the volume of irredeemable issues, and to extend indefinitely the application of the quality of legal tenders. That it was carried no further during the present civil war, and has been carried no further since, is due to circumstances, the consideration of which does not belong to this discussion.

LEGAL TENDER ON PRE-EXISTING DEBTS.

We recur, then, to the question under consideration. No one questions the general constitutionality, and not very many, perhaps, the general expediency of the legislation by which a note currency has been authorized in recent years. The doubt is as to the power to declare a particular class of these notes to be a legal tender in payment of pre-existing debts. The only ground upon which this power is asserted is, not that the issue of notes was an appropriate and plainly adapted means for carrying on the war, for that is admitted, but that the making of them a legal tender to the extent mentioned was such a means. Now we have seen that of all the notes issued those not declared a legal tender at all constituted a very large proportion, and that they circulated freely and without discount. It may be said that their equality in circulation and credit was due to the provision made by law for the redemption of this paper in legal tender notes, but this provision, if at all useful in this respect, was of trifling importance compared with that which made them receivable for Government dues. All modern history testifies that in time of war, especially when taxes are augmented, large loans negotiated, and heavy disbursements made, notes issued by the authority of the Government, and made receivable for dues to the Government, always obtain at first a ready circulation, and even when not redeemable in coin on demand, are as little and usually less subject to depreciation than any other description of notes for the redemption of which no better provision is made. And the history of the legislation under consideration is, that it was upon the quality of receivability, and not upon the quality of legal tender, that reliance of circulation was originally placed; for the receivability clause appears to have been in the original draft of the bill, while the legal tender

clause seems to have been introduced at a later stage of its progress. These facts certainly are not without weight as evidence that all the useful purposes of the notes would have been fully answered without making them a legal tender for pre-existing debts. It is denied, indeed, by eminent writers that the quality of legal tender adds any thing at all to the credit or usefulness of Government notes; they insist, on the contrary, that it impairs both. However this may be, it must be remembered that it is as a means to an end to be obtained by the action of the Government.

HOW FAR DOES LEGAL TENDER HELP THE GOVERNMENT?

That the implied power of making notes a legal tender in all payments is claimed under the Constitution; now, how far is the Government helped by this means? Certainly it cannot obtain new supplies, or services at a cheaper rate, for no one will take the notes for more than they are worth at the time of the new contract. The price will rise in the ratio of the depreciation, and this is all that could happen if the notes were not made a legal tender. But it may be said that the depreciation will be less to him who takes them from the government, if the government will pledge to him its power to compel his creditors to receive them at par in payments. This is, as we have seen, by no means certain. If the quantity issued be excessive, and redemption uncertain and remote, great depreciation will take place. If, on the other hand, the quantity is only adequate to the demands of business, and confidence in early redemption is strong, the notes will circulate freely, whether made a legal tender or not; but if it be admitted that some increase of availability is derived from making the notes a legal tender under new contracts, it by no means follows that any appreciable advantage is gained by compelling creditors to receive them in satisfaction of pre-existing debts. And there is abundant evidence that whatever benefit is possible from that compulsion to some individuals, or to the government, is far more than outweighed by the losses of property, the derangement of business, the fluctuations of currency and values, and the increase of prices to the people and the government, and the long train of evils which flow from the use of an irredeemable paper money. It is true that these evils are not to be attributed altogether to making it a legal tender, but this increases these evils. It certainly widens their extent, and protracts their continuance. We are unable to persuade ourselves that an expedient of this sort is an appropriate and plainly adapted means for the execution of the power to declare and carry on war. If it adds nothing to the utility of the notes, it cannot be upheld as a means to the end in furtherance of which the notes are issued; nor can it, in our judgment, be upheld as such if, while facilitating in some degree the circulation of the notes, it debases and injures the currency in its proper use to a much greater degree. And these considerations seem to us equally applicable to the power to regulate commerce and to borrow money. Both powers necessarily involve the use of money by the people, and by the Government, but neither, as we think, carries with it, as an appropriate and plainly adapted means to its exercise, the power of making circulating notes a legal-tender in payment of preexisting debts.

EARLY LAWS AND OPINIONS.

There is another view which seems to us decisive. To whatever express power the implied power in question may be referred, in the rule stated by Chief Justice Marshall, the words "appropriate, plainly adapted, really calculated," are qualified by the limitation that the means must not be prohibited, but consistent with the letter and spirit of the Constitution. Nothing so prohibited or inconsistent can be regarded as appropriate, or plainly adapted, or really calculated means to any end. Let us inquire, then, first, whether making bills of credit a legal tender to the extent indicated is consistent with the spirit of the Constitution. Among the great cardinal purposes of that instrument, no one is more conspicuous or more venerable than

the establishment of justice. And what was intended by the establishment of justice in the minds of the people who ordained it, is happily not a matter of disputation. It is not left to inference or conjecture, especially in its relations to contracts. When the Constitution was undergoing discussion in the Convention, the Congress of the Confederation was engaged in the consideration of the ordinance for the government of the terrirory north-west of the Ohio-the only territory subject at that time to its regulation and control. By this ordinance certain fundamental articles of compact were estabilshed between the original States and the people and States of the territory, for the purpose, to use its own language, "of extending the fundamental principles of civil and religious liberty, whereon these republics" (the States united under the confederation), “their laws and Constitutions are erected." Among these fundamental principles was this: "And in the just preservation of rights and property it is understood and declared that no law ought ever to be made or have force in the said territory that shall in any manner whatever interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.” The same principle found more condensed expression in that most valuable provision of the Constitution of the United States, ever recognized as an efficient safeguard against intrigue, that no State shall pass any law impairing the obligation of con tracts. It is true that this prohibition is not applied in terms to the Government of the United States, Congress has express power to enact bankrupt laws, and we do not say that a law made in the execution of any other express power which incidentally only impairs the obligation of a contract can be held to be unconstitutional for that reason. But we think it clear that those who framed, and those who adopted the Constitution, intended that the spirit of this prohibition should pervade the entire body of legislation, and that the justice which the Constitution was ordained to establish was not thought by them to be compatible with legislation of an opposite tendency. In other words, we cannot doubt that a law not made in pursuance of an express power, which necessarily, and in its direct operation, impairs the obligation of contracts, is inconsistent with the spirit of the Constitution.

SANCTITY OF PRIVATE PROPERTY.

Another provision, found in the Fifth Amendment, must be considered in this connection. We refer to that which ordains that private property shall not be taken for public use without compensation. This provision is kindred in spirit to that which forbids legislation impairing the obligations of contracts, but unlike that it is addressed directly and solely to the National Government. It does not in terms prohibit legislation which appropriates the private property of one class of citizens to the use of another class; but, if such property cannot be taken for the benefit of all without compensation, it is difficult to understand how it can be so taken for the benefit of a part without violating the spirit of the prohibition. But there is another provision in the same amendment, which, in our judgment, cannot have its full and intended effect, unless construed as a direct prohibition of the legislation which we have been considering. It is that which declares that no person shall be deprived of life, liberty, or property, without due process of law. It is not doubted that all the provisions of this amendment operate directly in limitation and restraint of the legislative powers conferred by the Constitution. The only question is, whether an act which compels all those who hold contracts for the payment of gold or silver money to accept in payment a currency of inferior value, deprives such persons of property without due process of law. It is quite clear that whatever may be the operation of such an act, due process of law makes no part of it. Does it deprive any person of property? A very large proportion of the property of civilized men exists in the form of contracts. These contracts almost invariably stipulate for the payment of money; and we have already seen that contracts in the United States, prior to the act under con