16 Stat. at L., 34.

By the Act "To strengthen the public credit," approved March 18, 1869, Congress provided and declared, "That the faith of the United States is solemnly pledged to the payment in coin, or its equivalent, of all the obligations of the United States not bearing interest known as United States notes. * * * And the United States also solemnly pledges its faith to make provision at the earliest practicable period for the redemption of the United States notes in coin."

16 Stat. at L., 1.

At the Terms of this court of December, 1867, and December, 1868, several cases were pending which involved questions arising under the legal tender clauses of the Acts of 1862 and 1863.

In one of these, Lane Co. v. Oregon, 7 Wall., 71 (74 U. S., XIX., 101), the court announced a decision, in 1869, holding that the legal tender provision of the Acts of 1862 and 1863, related only to debts in the ordinary sense of the word and had no reference to taxes imposed by state authority.

In other cases, the court held that contracts made prior to 1862, which, by their express terms, were payable in gold coin, could not be satisfied by a tender of United States notes issued under the Legal Tender Acts.

Lane Co. v. Oregon (supra); Bronson v. Rodes, 7 Wall., 229 (74 U. S., XIX., 141); Butler v. Horwitz, 7 Wall., 258 (74 U. S., XIX., 149); Thompson v. Riggs, 5 Wall., 663 (72 U. S., XVIII., 704); Broderick v. Magraw,8 Wall., 639 (75 U. S., XIX., 531).

See, also, Willard v. Tayloe, 8 Wall., 557 (75 U. S., XIX., 501).

Shortly afterwards, Feb. 7, 1870, the decision in Hepburn v. Griswold, 8 Wall., 603 (75 U. S., XIX., 513), was announced.

The discussion of the questions involved in Hepburn v. Griswold, embraced the whole subject of the power of Congress under the Constitution to pass the Legal Tender Acts.

The court, as constituted at the time of the argument and of the announcement of the decision, under the operation of the Act of July 23, 1866, was composed of a Chief Justice and six Associate Justices.

The opinion of the court delivered by Chief Justice Chase, Associate Justices Nelson, Clifford and Field concurring, and also Mr. Justice Grier, who was a member of the court when the case was decided in conference, November 27, 1869, and when the opinion was directed to be read, January 29, 1870, was adverse to the constitutionality of the legal tender clauses. 8 Wall., 604 (75 U. S., XIX., 513). Associate Justices Miller, Swayne and Davis dissented.

After the announcement of the decision in Hepburn v. Griswold, a motion was made to this court by the Attorney-General to reconsider the question of the constitutionality of the Legal Tender Acts.

Subsequently, a majority of the court, four Judges dissenting, made an order that counsel for the parties, denying the validity of the legal tender clauses, and the Attorney-General be heard upon the following questions:

1. Is the Act of Congress, known as the Legal Tender Act, constitutional as to contracts made before its passage?

2. Is it valid as applicable to transactions since its passage?

On April 18, 1871, argument was accordingly again heard upon the above stated questions, not in the case of Hepburn v. Griswold, but in two cases pending in the court involving the question of the power of Congress to make treasury notes a legal tender between private persons in the discharge of pre-existing debts, one of which involved the question of the application of the legal tender clauses in respect to contracts made after its passage.

May 1, 1871, the decision of the court was announced (Legal Tender Cases, 11 Wall., 682); also, 12 Wall., 528 (79 U. S., XX., 287), overruling the case of Hepburn v. Griswold, and sustaining the constitutionality and validity of the legal tender clauses of the Acts of 1862 and 1863, both as to contracts made before and after its passage. The court stated that the opinion would be read thereafter. On January 15, 1872, the opinions in the above mentioned cases were delivered. The Legal Tender Cases, 12 Wall., 457 (79 U. S., XX., 287); see, also, Dooley v. Smith, 13 Wall., 604 (80 U. S., XX., 547).

Pausing here, to revert to the successive steps leading up to the affirmance by this court of the power of Congress to enact the legal tender laws, it will be seen that the Judicial, as well as the Legislative and Executive Departments, rested their action on substantially the same ground.

The action of Congress in the passage of the first Legal Tender Act was, as already exhibited, placed distinctly upon the ground of the existing imperative needs of the government, and the legal tender clause was urged and adopted as a war measure.

The action of the Executive Department rested on the same ground. It uniformly treated the legal tender quality of the treasury notes as a temporary expedient, necessary as a means of averting national destruction, but otherwise unjustifiable.

The Judicial Department went no further in the decision last above cited.

Of the ten eminent members of this court, before whom the question was argued, five deny the existence in Congress of any constitutional power to give to treasury notes a legal tender quality for the payment of debts, and five assert and sanction the power as exercised in 1862 and 1863, by the passage of the so-called Legal Tender Acts in those years of the war.

the members of this court are equal, it is noteworthy that the learned Judges and jurists who condemned the Acts of 1862 and 1863, did so upon grounds which wholly prohibited Con

In a large majority of the States represented in the Thirty-Seventh Congress, 1861-1863, the question of the constitutionality of the legal tender clauses of the Acts of 1862 and 1863 had arisen in various cases of private contract, and had been passed upon in many instances after much deliberation and research, by the Judges of the courts of last resort. And in only two States, New Jersey and Kentucky, were final decisions rendered adverse to the validity of the legal tender provisions of the Acts. Martin v. Martin, 20 N. J. Eq., 421; Griswold v. Hepburn, 2 Duvall (Ky.), 26.

This unanimity of decision in the state courts will be found on an examination of the reported cases to have been due in part to a proper reserve and hesitation in passing upon constitutional questions as to which the federal judicia ry was the ultimate arbiter, in any other way than to sustain, if possible, the authority of Congress. But it was also very largely due to the sentiment that the denial to Congress of the power in question under such circumstances as those in which it had actually been exercised, would be fraught with more danger than to uphold and sanction it.

George v. Concord, 45 N. H., 434; Carpenter v. Bank, 39 Vt., 46; Essex Co. v. Pacific Mills, 14 Allen, 389; Metrop. Bk. v. Van Dyck, 27 N. Y., 400; Legal Tender Cases, 52 Pa. St., &; Thayer v. Hedges, 23 Ind., 141; VanHusen v. Kanouse, 13 Mich., 303; Breitenbach v. Turner, 18 Wis., 140; O'Neil v. McKewn, 1 S. C., 147; Wills v. Allison, 4 Heisk., 385; Breen v. Dewey, 16 Minn., 136; Hintrager v. Bates, 18 Iowa, 174; Riddelsbarger v. McDaniel, 38 Mo., 138, 458; Cox v. Smith, 1 Nev., 171; Lick v. Faulkner,25 Cal., 404.

In the space of a single decade, the expedient of providing funds for the prosecution of a Civil War, declared by this court to be the greatest known in the history of the human race, by making the notes of the United States a legal tender, an expedient reluctantly resorted to by the Legislative Department as a temporary expedient, and reluctantly assented to by the Executive Department, and repeatedly declared by it to be no longer permissible as a permanent system, has been twice subjected to the scrutiny of the Judicial Department, at first condemned by five voices of its Supreme Bench, and then upheld by an equal but not greater number of voices from the same supreme bench, resulting in this and nothing more; that the legal tender provisions of the Acts of 1862 and 1863, as they stand on the statute-book in those Acts, are adjudged to have been a valid exercise of a power conferred on Congress by the Constitution, necessary under the circumstances in which it was exercised.

It cannot escape the observation of any candid student of the history of this subject, that the opponents of the power of Congress to give a legal tender quality to the treasury notes have been at all times united and consistent in their grounds of opposition. Starting with the undisputed proposition as laid down by this court, speaking through Mr. Justice Story, Martin v. Hunter, 1 Wheat., 326, that: "The Government, then, of the United States can claim no powers which are not granted to it by the

must be such as are expressly given, or given by necessary implication, they have maintained: That the power to make anything except gold and silver a legal tender for the payment of debts, prohibited by the Constitution of the United States, is not granted by express terms to Congress, and in the light of history contemporaneous with the adoption of the Constitution, was not intended to be granted;

That if it exists it must, therefore, be derived and spelled out as a power implied in or deducible from some of the express powers actually granted to Congress;

That it cannot reasonably be so derived, because it is not to be deduced from the express power to coin money and regulate the value thereof, a paper currency being itself a contradiction of the term "money," and cannot, by logic or by regulation of law, any more than by magic, be turned into money. Nor from the express power to "borrow money," because this power gives no authority to any debtor, citizen or Sovereign, to change the standards of value or to give greater currency to promises to pay by declaring their enforced substitution. as money between third persons not concerned. in the act of borrowing. Nor from the grant of power to declare war, to raise and support armies and navies, because the wants of the government in any particular department cannot be made the measure of its powers where those powers are restricted by constitutional limits. Nor can it be derived from the general grant of power to make all laws necessary and proper for carrying into effect the other powers vested in Congress by the Constitution, because the exercise of this particular power was not a means necessary or appropriate to the execution of any of the powers expressly delegated, because it never inhered in the delegated sovereignty of the Federal government, and because the doctrine of resulting powers to be exercised at will would turn the Government from one of limited power to one of unlimited power, lodged in a single department, in respect to a vital element of the national existence.

To all this, the opponents of the power added the admitted evils of a paper currency with a legal tender attribute, the intrinsic bad faith and the attendant impairment of the obligation of public and private contracts resulting from its creation, and an absolute denial of the fact that the legal tender attribute was ever an imperative necessity.

Such are the main positions taken against the power of Congress by all the opponents of legal tender treasury notes as contained in the arguments of counsel in the reports, state and federal, in the debates of Congress, in the works of jurists and in the discussions of publicists.

On the other hand, no concurring and consentaneous answer has been given by those statesmen, publicists, jurists or judges, who have upheld, in discussion or judicial decision, the existence of the power and the right of Congress to exercise it, except on the ground and upon the plea of necessity.

Reduced to their final terms, all the arguments in support of the power come to this: that the extreme needs of a constitutional government may require extreme measures for its preservation; that the power of self-preserva

tion and self-perpetuation must be commensurate with such needs; and that where all the powers of the government are given by a written Constitution, this power must, if not expressly written on its face, be necessarily intended by what is there written, and that, either as an incident to some enumerated power or as a resultant from the aggregate of all the powers granted, aud as a necessary means appropriate to carry into effect those which are enumerated, this power must have been intended, if the framers of the Constitution meant that the government they formed should have in it the means of protection against all emergencies, and was to live and not die.

And in view of the greatness of the peril and the sore extremity of the country, when the power was resorted to as a supreme need, the duly constituted judicial authority has declared, without the absolute concurrence of its members in any one ground for the declaration, that the legal tender clauses of the Acts of 1862 and 1863, as therein expressed, are part of the law of the land.

II. The course of Congressional legislation, since the decision of the Legal Tender Cases, culminating in the Act of May 31, 1878, which compels a post-redemption issue of the so-called legal tender notes, raises for the first time the question of the power of Congress to direct the issue of United States notes as currency, with the quality of legal tender, in time of peace and in the absence of any public exigency,

On January 1, 1879, the resumption of specie payments began, and all the United States notes then and since presented for redemption in coin, in the manner provided by the resumption Act, have been paid.

The amount of the public debt outstanding January 1, 1879, represented by the legal tender notes, was $346,681,016.

Under the construction given by the Treasury Department to section 3579 of the Revised Statutes, coupled with the Act of May 31,1878, all the United States notes returned into the Treasury, as worn and mutilated notes, as well as those redeemed in coin, are treated in the report of the Treasurer of the United States as redeemed, and during each year since the passage of the Act of May 31, 1878, there have been issued and paid out by the Treasury Department, the precise amount in United States notes, which have been so redeemed, but not in notes of the same denominations.

This is done without any question of exigency or public interest, or the exercise of any discretion on the part of the Treasury Department or any of its officers, who are expressly prohibited from exercising any such discretion. Such a course can only be sustained by holding that Congress has the power to direct the re-issue of redeemed treasury notes, as well as worn or mutilated notes, or those returned and not redeemed, and to continue their legal tender quality, without reference to any public exigency, at its own will and pleasure.

III. The Aet of May 31, 1878, taken in connection with the unrepealed provisions of the resumption Act requiring the redemption in coin, on and after Jan. 1, 1879, of all of the United States legal tender notes then outstanding, can be upheld as a constitutional exercise of power only by construing it to require a new

issue of such notes, after redemption, as a cir culating medium, without the quality of legal tender."

The resumption Act, passed Jan. 14, 1875, required all the United States legal tender notes outstanding Jan. 1, 1879, to be redeemed in coin, on presentation on and after that date. It repealed all provisions of law inconsistent with its own provisions.

The only provisions of law relating to the United States legal tender notes which were in force Jan. 14, 1875, were sections 3571, 3579, 3582 and 3588 of the Revised Statutes. All previous laws had been repealed.

The Revised Statutes contain and express the whole statute law of the United States as it was on December 31, 1873.

U. S. v. Bowen, 100 U. S., 508 (XXV., 631); Arthur v. Dodge, 101 U. S., 34 (XXV., 948); Victor v. Arthur, 104 U. S., 498 (XXVI., 633).

The provisions of the resumption Act applied to the same United States legal tender notes to which the above cited sections of the Revised Statutes applied. It directed the same notes to be redeemed in coin.

The redemption in coin of these notes contemplated the extinguishment of the debt.

The Act of May 31, 1878, is the sole warrant for their subsequent use. Without its authority, the Treasury Department could not lawfully have used them in any transaction.

It may well be construed as authorizing a circulation of United States notes, without the quality of legal tender, because this quality is not essential or necessary to the notes as a circulating medium.

IV. If the Act of May 31, 1878, was intended to direct the keeping in circulation of the United States notes therein described, with the legal tender quality, it was to that extent unconstitutional and void and should be so declared by this court.

To emit bills of credit as currency and with the quality of legal tender, in time of peace and in the absence of any apparent public exigency, is not within any of the express powers delegated to Congress by the Constitution, nor is it within any of the powers which can be properly implied, or which necessarily result from those which are expressly granted.

These propositions, if not res judicata, are just and necessary inferences from the decisions of this court.

It is not now proposed to renew the general argument against the power of Congress, ever or under any circumstances, to make United States notes a legal tender.

The opinions of the majority of the court, as reported in Hepburn v. Griswold, 8 Wall., 603 (75 U. S., XIX., 513), and of the minority as reported in the Legal Tender Cases, 12 Wall., 457 (79 U. S., XX., 287), are full, although not now authoritative, expositions of the views of those who deny the existence of the power.

Accepting, as final, the result by which the view for which they contended was silenced, we place the present argument upon a ground which that result fully supports and necessarily implies, to wit: that the Constitution vests no power in Congress, either by express grant or as the result of any one or of all the powers which it confers, to create at will and in the absence of any national exigency, a legal tender