sideration for the payment of money, were contracts to pay the sums specified in gold and silver coin; and it is beyond doubt that the holders of those contracts were and are as fully entitled to the protection of this constitutional provision as the holders of any other description of property. But it may be said that the holders of no description of property are protected by it from legislation which, incidentally only, impairs its value, and it may be urged in illustration that the holders of stock in a turnpike, a bridge, or a manufacturing corporation, or an insurance company, or a bank, cannot by authorizing similar works or corporations reduce its price in the market; but all this does not appear to meet the real difficulty. In the cases mentioned, the injury is purely contingent and incidental. In the case we are considering it is direct and inevitable. If in the cases mentioned the holder of the stock was required to convey it on demand to any one who should think fit to offer half its value for it, the analogy would be more obvious. No one probably could be found to contend that an act enforcing the acceptance of 50 or 75 acres of land in satisfaction of a contract to convey 100 would not come within the prohibition against arbitrary privation of property. We confess ourselves unable to perceive any solid distinction between such an act and an act compelling all citizens to accept in satisfaction of all contracts for money half or three-quarters, or any other proportion less than the whole, of the value actually due according to their terms. It is difficult to conceive what act would take private property without process of law, if such an act would not. We are obliged to conclude that an act making mere promises to pay dollars a legal tender in payment of debts previously contracted, is not a means appropriate, plainly adapted, really calculated to carry into effect any express power vested in Congress; that such an act is inconsistent with the spirit of the Constitution, and that it is prohibited by the Constitution. It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the republic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent; some who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of calmer times, reconsidered their conclusions, and now concur in those which we have just announced. These conclusions seem to us to be fully sanctioned by the letter and spirit of the Constitution. We are obliged, therefore, to hold that the defendant in error was not bound to receive from the plaintiffs the currency tendered to him in payment of their note made before the passage of the act of Feb. 25, 1862. It follows that the judgment of the Court of Appeals of Kentucky must be affirmed.

MILLER, J., dissenting: The provisions of the Constitution of the United States, which have direct reference to the function of legislation, may be divided into three primary classes: First, those which confer legislative powers on Congress; second, those which prohibit the exercise of legislative powers by Congress; third, those which prohibit the States from exercising certain legislative powers. The powers conferred on Congress may be subdivided into the positive and the auxiliary, or, as they are more usually called, the express and implied power. As instances of the former class may be mentioned the power to borrow money, to raise and support armies, and to coin money and regulate the value thereof. The implied or anxiliary powers of legislation are founded largely on that general provision which closes the enumeration of powers granted in express terms by the declaration that Congress shall also have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

The question which this Court is called upon to consider is, whether the authority to make the notes of the United States a lawful tender in payment of debts is to be found in Congress under either of these classes of legislative power. As one of the elements of this question, and in order to negative any idea that the exercise of such a power would be an invasion of the rights reserved to the States, it may be as well to say at the outset that this is among the subjects of legislation forbidden to the States by the Constitution. Among the unequivocal ntterances of that instrument on this subject of lawful tender, is that which declares that no State shall coin money, grant bills of credit, or make any thing but gold and silver a tender in payment of debts, thus removing the whole matter from the domin ion of State legislation. No such prohibition is placed upon the power of Congress over this subject, though there are, as we have already said, matters expressly forbidden to Congress, but neither this of legal tender, nor the power to emit bills of credit, or to impair the obligation of contracts, is among them; and though it must be obvious that, in prohibiting this legal tender power to the States, the attention of the Convention must have been directed to the propriety of a limitation of the power of Congress. On the contrary, Congress is expressly authorized to coin money, and to regulate the value thereof and of foreign coin, and to punish the counterfeiting of such coin and securities of the United States.

It has been strongly argued by many able jurists that these latter clauses, fairly construed, confer the power to make the securities of the United States a lawful tender in payment of debts. While I am not able to see in them, standing alone, a sufficient warrant for the exercise of this power, they are not without decided weight when we come to consider the question of the existence of this power as one necessary and proper for carrying into execution other admitted powers of the government, for they show that so far as the framers of the Constitution did go, in granting express power over the lawful money of the country, it was confided to Congress, and not to the States, and it is no unreasonable inference that if it should be found necessary in carrying into effect some of the powers of the government essential to its successful operation, to make its securities perform the payment of debts. Such legislation would be in harmony with the power over money granted in express terms.

It being conceded, then, that the power under consideration would not, if exercised by Congress, be an invasion of any right reserved to the United States, but one which they are forbidden to employ, and that it is not in terms either granted or denied to Congress, can it be sustained as a law necessary and proper, at the time it was enacted, for carrying into execution any of these powers that are expressly granted either to Congress or to the Government, or to any department thereof? From the organization of the Government under the present Constitution, there have been from time to time attempts to limit the powers granted by that instrument by a narrow and literal rule of construction, and these have been specially directed to the general clause which we have cited as the chief foundation of the auxiliary powers of the Government.

It has been said that this clause, so far from authorizing the use of any means which could not have been used without it, is a restriction upon the powers necessarily implied by an instrument so general in its language. The doctrine is, that when an act of Congress is brought to the test of this clause of the Constitution, it of necessity must be absolute, and its adaptation to the conceded purpose unquestionable. Nowhere has this principle been met with more emphatic denial or more satisfactory refutations than in this Court. That eminent jurist and statesman, whose official career of over 30 years as Chief Justice commenced very soon after this Constitution was adopted, and whose opinions have done as much to fix its meaning as those of any man living, or dead, has given this particular clause the benefit of his fullest consideration. In the case of the United States ". Fisher (2 Cranch, 358), decided in 1804, the point in issue was the priority claimed for the United States as a creditor of a bankrupt over all other creditors. It was argued mainly on the construction of the statutes; but the power of Congress to pass such a law was also denied. The Chief Justice said:

"It is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the Government, or in any department thereof."

In construing 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, when 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 attained 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 the power granted by the Constitution. It was accordingly held that, under the authority to pay the debts of the Union, it could pass a law giving priority for its own debts in case of bankruptcy.

The

But in the memorable case of McCulloch, versus the State of Maryland (4 Whalen, 316), the most exhaustive discussion of this clause is found in the opinion of the same eminent expounder of the Constitution. That case involved, as is well known, the right of Congress to establish the Bank of the United States and to aut orize it to issue notes for circulation. It was conceded that the right to incorporate or create such a bank had no specific grant in any clause of the Constitution; still less the right to authorize it to issue notes for circulation as money. But, it was argued, that as a measure necessary to enable the Government to collect, transfer and pay out its revenues, the organization of a bank with this function was within the power of Congress. In speaking of the true meaning of the word "necessary," in this clause of the Constitution, he says: "Does it always impart an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without it?" We think it does not. If reference be had to its use in the common affairs of the world, or in approved authors, we find that it frequently imparts no more than that one thing is convenient or useful or essential to another; to employ means necessary to an end is generally understood as employing any means calculated to produce the end; and not as being confined to those single means without which the end would be unattainable. word "necessary" admits, he says, of all degrees of comparison. A thing may be necessary, very necessary, absolutely, or indispensably necessary. The word, then, like others, is used in various senses, and in its construction the subject, the context, the intention of the person using them, are to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, as far as human prudence.could insure, 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 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 immutable rules for exigencies which, if foreseen at all, must have been but 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.

We have cited at unusual length these remarks of Chief Justice Marshall because, though made half a century ago, their applicability to the circumstances under which Congress called to its aid the power of making the securities of the government a legal tender, as a means of successfully prosecuting a war which, without such aid, seemed likely to terminate its existence, and to borrow money which could in no other manner be borrowed, and to pay the debt of millions due to its soldiers, which could by no other means be paid, seems to be almost prophetic.

If he had had clearly before his mind the future history of his country he could not have better characterized a principle which would have rendered the power to carry on a war nugatory, which would have deprived Congress of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances by the use of the most appropriate means of supporting the Government in the crisis of its fate.

But it is said that the clause under consideration is admonitory, as to the use of implied powers, and adds nothing to what would have been authorized without. The idea is not new, and is probably intended for the same which was urged in the case of McCulloch v. The State of Maryland-namely, that instead of enlarging the powers conferred on Congress, or providing for a more liberal use of them, it was designed as a restriction upon the auxiliary powers incidental to every express grant of power in general terms. I have already cited so fully from that case that I can only refer to it to say that this proposition is there clearly stated and refuted. Does there exist, then, any power in Congress or in the Government, by express grant, to the execution of which this legal tender act was necessary and proper, in the sense here defined, and under the circumstances of its passage?

The power to declare war, to suppress insurrection, to raise and support armies, to provide and maintain a navy, to borrow money on the credit of the United States, to pay the debts of the Union, and to provide for the common defense and general welfare, are each and all distinctly and specifically granted in separate clauses of the Constitution. We were in the midst of a war which called all these powers into exercise and taxed them severely a war which, if we were to take into account the increased capacity for destruction introduced by modern science and the corresponding increase of its cost, brought into operation powers of belligerency more potent and more expensive than any that the world has ever known. All the ordinary means of rendering efficient the several powers of Congress above mentioned had been employed to their utmost capacity, and with the spirit of the Rebellion unbroken, with large armies in the field unpaid, with a current expenditure of $2,000,000 per day, the credit of the Government nearly exhausted, and the resources of taxation inadequate to pay even the interest on the public debt, Congress was called on to devise some new means of borrowing money on the credit of the nation; for the result of the war was conceded by all thoughtful men to depend on the capacity of the Government to raise money in amounts previously unknown. The banks had already loaned their means to the Treasury; they had been compelled to suspend the payment of specie on their own notes. The coin in the country, if it could all have been placed within the control of the Secretary of the Treasury, would not have made a circulation sufficient to answer army purchases and army payments, to say nothing of the ordinary business of the country. A general collapse of credit, of payments, and of business, seemed inevitable, in which faith in the ability of the Government would have been destroyed; the Rebellion would have triumphed; the States would have been left divided, and the people impoverished. The National Government would have perished, and with it the Constitution which we are called upon to construe with such nice and critical accuracy.

That the legal tender act prevented these disastrous results, and that the legal tender clause was necessary to prevent them, I entertain no doubt. It furnished instantly a means of paying the soldiers in the field, and filled the coffers of the commissary and quartermaster. It furnished a medium for the payment of private as well as public debts at a time when gold was being rapidly withdrawn from circulation, and the bank currency was becoming worthless. It furnished the means to the capitalist of buying the bonds of the government; it stimulated trade, revived the drooping energies of the country, and restored confidence to the public mind. The results which followed the adoption of this measure are beyond

effect of a great public measure, in depreciating the value of lands, stocks, bonds, and other contracts, renders such a law invalid, as taking private property for public use, or as depriving the owner of it without due course of law. A declaration of war with a maritime power would thus

LEGAL PROCEDURE IN FRANCE. France has not always had much reason to be proud, either of her laws or of her judges. Previously to

abroad is lessened 25 or 30 per cent, and those at home almost as much. The abolition of the tariff on iron, or sugar, would in like manner destroy the furnaces, and sink the capital employed in the manufacture of those articles. Yet no statesman, however warm an advocate of high tariffs, has claimed that to abolish such duties would be unconstitutional as taking private property. If the principle be sound, every successive issue of government bonds during the war was void, because by increasing the public debt it made those already in private hands less valuable. This whole argument of the injustice of the law-an injustice which, if it ever existed, will be repeated by now holding it void-and of its opposition to the spirit of the Constitution, is too abstract and intangible for application to courts of justice, and is above all dangerous, as a ground on which to declare the legislation of Congress void by the decision of a court It would authorize this court to enforce theoretical views of the genius of our government or vague notions of the spirit of the Constitution and of abstract justice by declaring void laws which did not square with them. It substitutes our ideas of policy for judicial construction, an undefined code of ethics for the Constitution, and a court of justice for the national legislature.

Upon the enactment of these legal tender laws, they were received with almost universal acquiescence, as valid payments were made in the legal tender notes for debts in existence when the law was passed, to the amount of thousands of millions of dollars, though gold was the only lawful tender when the debts were contracted. An equal, if not larger, amount is now due under contracts made since their passage, under the belief that these legal tenders would be valid payment. The two Houses of Congress, the President who signed the bill, and fifteen State

Courts of last resort, being all but one that have passed upon the question, have expressed their belief in the constitutionality of these laws. With all this great weight of authority, this strong concurrence of opinion among those who have passed

upon the question before we have been called to decide itwhose duty it was, as much as it is ours, to pass upon it, in the light of the Constitution, are we to reverse their action, to

court of law, and few people so untrustworthy as French magistrates. "Haute justice"-that is, justice in important cases-was administered by the parliaments; and "basse justice," by an infinite number of people; such as provosts, bailiffs, landed proprietors, and church dignitaries, who were supposed to decide by equity, but who, in reality, mostly sold their judgments to the highest bidder. In the parliaments, the traffic in justice was so notorious that any man of sense would sooner have sacrificed a third of his fortune at once than have risked the whole of it-even when he had right on his side-in a lawsuit. The posts of Conseiller au Parlement were as much coveted as colonelcies, and fetched as good a price. They were usually bought for younger sons of noblemen, who constituted what was called "la noblesse de robe," and made rapid fortunes out of unscrupulous pleaders. History has kept the names of a few upright judges-L'Hopital, D'Aguesseau, D'Thou, and some others-but they were rare exceptions, as is sufficiently proved by the immense veneration with which they are still regarded. The last who acquired a high reputation for impartiality was the Chancellor Du Harlay, under Louis XV's reign. He was an honest man, but one of the most uncouth mannered and gruff-spoken persons of his time. A characteristic story is told concerning him and the Duchess de Grammont, who, happening to have a lawsuit on hand, went as was customary, to pay a propitiatory visit, in order to see whether any bribing was possible. Du Harlay received her with about the same civility he would have shown a dog; so that the Duchess, who was used to the flattery of everybody who came near her, went out from his presence red with rage, and almost crying from mortification.

for its enactment does not appear so strong to us as it did to Congress, or so clear as it was to other Courts? Such is not my idea of the relative functions of the legislative and judicial departments of this government. Where there is a choice of means, the selection is with Congress, not the Court. If the act to be considered is in any sense essential to the execution of an acknowledged power, the degree of that necessity is for the Legislature and not for the Court to determine.

In the case of "Wheaton," from which I have already quoted so fully, the Court says that, where the law is not prohibited, and is really calculated to effect any 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 to tread on legislative ground. This Court disclaims all pretensions to such a power. This sound exposition of the duties of the Court in this class of cases relieves me from any embarrassment or hesitation in the case before me. If I had entertained doubts of the constitutionality of the law, I must have held the law valid until those doubts became convictions; but as I have a very decided opinion that Congress acted within the scope of its authority, I must hold the law to be constitutional, and dissent from the opinion of the Court.

I am authorized to say that Mr. Justice SWAYNE and Mr. Justice DAVIS concur in this opinion.

ed; and she said to her daughter, who was with her: "The man ought to be flogged. He's no better than an old baboon." But the words were hardly spoken than she turned pale with horror, for, on looking round, she saw the sardonic face of the chancellor, who had followed her out to her carriage, Naturally, she supposed that her suit was blasted, and when the cause came on trial could hardly credit her senses upon hearing Du Harlay give judgment in her favor. The conduct of the chancellor seemed to her so noble that she instantly asked for an audience, and thanked him with fervor. "Oh, madame," answered Du Harlay, grimly, "il n'y a point de remerciements a me faire. Un vieux babouin, est toujours enchante de rendre service a une vieille babouine."

At the Revolution, one of the first subjects which the National Assembly took up, with a view to instant reform, was the administration of justice. The criminal laws were then barbarous, and the jurisprudence in civil cases was founded upon a confused jumble of contrary edicts some remounting to the time of the Merovingian dynasty, and all more or less autocratic and absurd. What made matters worse, too, was, that each province had its set of laws. just as each had its

scale of weights and measures; so that even in the remote contingency of a couple of pleaders having to do with thoroughly incorruptible judges, there was small chance of their obtaining a definite and binding adjudication if they resided in different provinces. Some suits were sent from parliament to parliament, until each side could boast of half a dozen judgments in support of its claims; and there were cases that were protracted in this way from generation to generation, until every body connected with the families of the suitors had died out.

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The national assembly lost no time in remedying this disastrous state of things by enacting, first, that a code should be drawn up to serve for the whole kingdom; and next, that the judges should he elected by the people. This last reform was never fairly carried out; but a sort of code was drawn up by the Convention, and worked with tolerably good effect, until it was ultimately superseded by that to which Napoleon has attached his name, and which was elaborated under the Consulate. Most French lawyers are very proud of this code, which has certainly the merit of being so mathematically simple that every body who can read is able to judge for himself, without the help❘ of a solicitor, what things he may and may not do. Of late years, however, there has been a growing opinion amongst the liberal minded and reforming portion of the French bar, that there is room for considerable improvement in the methods of procedure which the code lays down; and this opinion applies especially to the criminal procedure, which is both more intricate and more harassing in its effects than ours. France, as at present constituted, is divided for judicial purposes into tribunals of "first instance" and Imperial Courts - there being of the former one for every arrondissement, and of the latter twenty-seven in the whole empire. Above all, is one court of high appeal the Court de Cassation, which sits in Paris. In civil cases a man can have recourse successively to five jurisdictions: first, he can apply to the justice of the peace of his canton, who has power to adjudicate as to all sums not exceeding a hundred francs; next, he can appeal to the tribunal of his arrondissement; after that he may be sent to the Court Imperiale of the district; then, if he wishes it, to the Court of Cassation, and finally, to the Council of State, which has power-though it seldom exercises it-to hear his case over again if he fancies himself maliciously wronged by one of his judges. There is no jury in civil cases. The trial in "first instance" takes place before three judges; in the Imperial Court, before five or seven; in the Court of Cassation, before twelve. In all cases the Procureur Imperial intervenes either for the plaintiff or defendant, as he thinks right, and it is very rare indeed that his intervention does not sway the verdict. In criminal cases a condemned man has three appeals - that is, to the court of the arrondissement, the Imperial Court and the Court of Cassation; after these all that remains is the recours en grace, which the counsel of a prisoner under sentence of death, or penal servitude, transmits to the Sovereign through the minister of justice. In the country, when a peasant commits a small misdemeanor, he is summoned before the justice of the peace of the canton, who may punish him with not

more than two days' imprisonment, or with a fine not exceeding a hundred francs. At Paris it is the tribunal of simple police which takes cognizance of these minor offenses; and any stranger curious to see justice expeditiously administered would do well to pay a visit to this tribunal, where from ten in the morning to three in the afternoon, cabmen, costermongers and street boys defile in an unbroken procession to answer for peccadilloes, known as delits de voirie-i. e., breaches of police and municipal regulations. In the case of offenses of a serious nature it is no longer the juge de paix or the tribunal of simple police to whom the accuser is deferred, but to the Procureur Imperial. For example, when an indictable offense has been committed, the first person to be informed of it-if the delinquent have not been arrested on the spot-is the Commissaire de Police, with whom the complaint is lodged. There are eighty of these commissaires in Paris, and their functions are rather more extensive than those of English inspectors of police, for they may, at their discretion, liberate prisoners who are simply charged with drunkenness or riotous conduct. Four times a day the commissaires send reports to the Prefecture de Police, whence all complaints are directly forwarded to the Procureur Imperial, or public prosecutor, who immediately issues against the parties accused, either a summons (mandat de comparution), or a warrant, (mandat d'amener). It needs an incredible amount of tact and judgment to discharge the functions of public prosecutor with equity; but it cannot be said that, as a rule, the Procureurs Imperial come up to the desirable standard. They are a very ill paid class. Their salaries vary from £60 a year in the country districts, to £240 a year in large towns; and even the procureurs-general, or public prosecutors-in-chief, of whom there are but twenty-eight in the whole empire, receive only £640. These emoluments are too small to tempt men who have the slightest chance of making their way at the bar, and the government is obliged to select from among those who, however honest and painstaking they may be, are, at best, lawyers of quite second-rate capacity. The Procureur Imperial and his deputies sit every day, and divide the business between them. When a defendant appears to answer a summons, or comes up in custody under warrant, his examination is conducted in strict privacy, and the procureur, who is often overdone with work, seldom takes more than a few minutes in deciding whether there are grounds for a prosecution or not. If the charge seems a frivolous one, or if the prima facie evidence be insufficient, he may at once dismiss the case; in the contrary event he hands over the inculpe to the examining magistrate, or juge d' instruction, who either liberates the defendant on bail (though this is very rarely done), or orders his provisory incarceration under a mandat de depot. We may remark that great latitude is always allowed by French magistrates toward journalists charged with press offenses, and towards men in good social position indicted for such misdemeanors as dueling, assault, or rioting. We may add, too, that although in press prosecutions the printer of a paper is generally indicted with the editor, and sentenced to a month or two of confinement, it is not customary for