[465]

under the authority of the General Govern-
ment, and as such to be a legal tender for
debts, are to be composed principally, if not
entirely, of the metals of gold and silver. Coins
of such metals are necessarily a legal tender to
the amount of their respective values without
any legislative er actment, and the Statute of the
United States providing that they shall be such
tender is only declaratory of their effect when
offered in payment. When the Constitution
says, therefore, that Congress shall have the
power to coin money, interpreting that clause
with the prohibition upon the States, it says it
shall have the power to make coins of the pre-
cious metals a legal tender, for that alone which
is money can be a legal tender. If this be the
true import of the language, nothing else can
be made a legal tender. We all know that the
value of the notes of the government in the
market, and in the commercial world general-
ly, depends upon their convertibility on demand
into coin; and as confidence in such converti-
bility increases or diminishes, so does the ex-by their form and impress, a certificate of their
changeable value of the notes vary. So far from
becoming themselves standards of value by rea-
son of the legislative declaration to that effect,
their own value is measured by the facility with
which they can be exchanged into that which
alone is regarded as money by the commercial
world. They are promises of money, but they
are not money in the sense of the Constitution.
The term "money" is used in that instrument
in several clauses; in the one authorizing Con-
gress "to borrow money;" in the one authoriz-
ing Congress "to coin money;" in the one de-
claring that "no money "shall be drawn from
the Treasury but in consequence of appropria-
tions made by law; and in the one declaring
that no State shall "coin money." And it is a
settled rule of interpretation that the same term
occurring in different parts of the same instru-
ment shall be taken in the same sense, unless
there is something in the context indicating
that a different meaning was intended. Now,
to coin money, is, as I have said, to make coins
out of metallic substances, and the only money
the value of which Congress can regulate is
coined money, either of our mints or of foreign
countries. It would seem, therefore, that to
borrow money is to obtain a loan of coined
money, that is, money composed of the precious
metals, representing value in the purchase of
property and payment of debts. Between the
promises of the government, designated as its
securities, and this money, the Constitution
draws a distinction which disappears in the
opinion of the court.

alloy they contain; so, it may alter, at its
pleasure, their denominations; it may hereafter
call a dollar an eagle; and it may call an eagle
a dollar. But if it be intended to assert that
Congress can make the coins changed the equiv
alent of those having a greater value in their
previous condition, and compel parties con-
tracting for the latter to receive coins with di-
minished value, I must be permitted to deny
any such authority. Any such declaration on
its part would be not only utterly inoperative
in fact, but a shameful disregard of its consti-
tutional duty. As I said on a former occasion:
"The power to coin money, as declared by
this court, is a great trust devolved upon Con-
gress, carrying with it the duty of creating
and maintaining a uniform standard of value
throughout the Union, and it would be a mani-
fest abuse of this trust to give to the coins is-
sued by its authority any other than their real
value. By debasing the coins, when once the
standard is fixed, is meant giving to the coins,
having a relation to that standard different from [466]
that which, in truth, they possess; in other
words, giving to the coins a false certificate of
their value. Arbitrary and profligate govern-
ments have often resorted to this miserable
scheme of robbery, which Mill designates as a
shallow and impudent artifice, the 'least covert
of all modes of knavery, which consists in call-
ing a shilling a pound, that a debt of one hun-
dred pounds may be canceled by the payment
of one hundred shillings.'" No such debase-
ment has ever been attempted in this country,
and none ever will be so long as any sentiment
of honor influences the governing power of the
Nation. The changes from time to time in the
quantity of alloy in the different coins has been
made to preserve the proper relative value be-
tween gold and silver, or to prevent exportation,
and not with a view of debasing them.
ever power may be vested in the Government
of the United States, it has none to perpetrate
such monstrous iniquity. One of the great
purposes of its creation, as expressed in the
preamble of the Constitution, was the establish-
ment of justice, and not a line nor a word is
found in that instrument which sanctions any
intentional wrong to the citizen, either in war
or in peace.

The opinion not only declares that it is in the power of Congress to make the notes of the government a legal tender and a standard of value, but that, under the power to coin money and regulate the value thereof, Congress may issue coins of the same denominations as those now already current, but of less intrinsic value, by reason of containing a less weight of the precious metals, and thereby enable debtors to discharge their debts by payment of coins of less real value. This doctrine is put forth as in some way a justification of the legislation authorizing the tender of nominal money in place of real money in payment of debts. Undoubtedly Congress has power to alter the value of coins is sued, either by increasing or diminishing the

What

But beyond and above all the objections which I have stated to the decision recognizing a power in Congress to impart the legal tender quality to the notes of the government, is my objection to the rule of construction adopted by the court to reach its conclusions, a rule which fully carried out would change the whole nature of our Constitution and break down the barriers which separate a government of limited from one of unlimited powers. When the Constitution came before the Conventions of the several States for adoption, apprehension existed that other powers than those designated might be claimed; and it led to the first ten amendments. When these were presented to the States they were preceded by a preamble stating that the Conventions of a number of the States had at the time of adopting the Constitution expressed a desire, in order to prevent misconception or abuse of its powers, that further declaratory and restrictive clauses should be added. One of them is found in the 10th

[467] Amendment, which declares that "The powers rect terms the passing of laws by Congress im-
not delegated to the United States by the Con- pairing the obligation of contracts, and there
stitution, nor prohibited by it to the States, are are many express powers conferred, such as the
reserved to the States respectively, or to the peo- power to declare war, levy duties and regulate
ple." The framers of the Constitution, as I commerce, the exercise of which affects more
have said, were profoundly impressed with the or less the value of contracts. Thus war nec-
evils which had resulted from the vicious legis-essarily suspends intercourse between citizens or
lation of the States making notes a legal tender, subjects of belligerent Nations, and the per-
and they determined that such a power should formance during its continuance of previous
not exist any longer. They, therefore, prohib-contracts. The imposition of duties upon goods
ited the States from exercising it, and they re-
fused to grant it to the new government which
they created. Of what purpose is it then to re-
fer to the exercise of the power by the absolute
or the limited governments of Europe, or by
the States previous to our Constitution. Con-
gress can exercise no power by virtue of any
supposed inherent sovereignty in the General
Government. Indeed, it may be doubted wheth-
er the power can be correctly said to appertain to
sovereignty in any proper sense as an attribute
of an independent political community. The
power to commit violence, perpetrate injustice,
take private property by force without compen-
sation to the owner, and compel the receipt of
promises to pay in place of money, may be ex-
ercised, as it often has been, by irresponsible au-
thority, but it cannot be considered as belong-
ing to a government founded upon law. But
be that as it may, there is no such thing as a
power of inherent sovereignty in the Govern-
ment of the United States. It is a government of
delegated powers, supreme within its prescribed
sphere, but powerless outside of it. In this
country, sovereignty resides in the people, and
Congress can exercise no power which they have
not, by their Constitution, intrusted to it; all
else is withheld. It seems, however, to be sup-
posed that, as the power was taken from the
States, it could not have been intended that it
should disappear entirely, and therefore it must
in some way adhere to the General Government,
notwithstanding the 10th Amendment and the
nature of the Constitution. The doctrine, that
a power not expressly forbidden may be exer-
cised, would, as I have observed, change the
character of our government. If I have read
the Constitution aright, if there is any weight
to be given to the uniform teachings of our great
jurists and of commentators previous to the late
Civil War, the true doctrine is the very oppo-
site of this. If the power is not in terms grant-
ed, and is not necessary and proper for the ex-
ercise of a power which is thus granted, it does
not exist. And in determining what measures
may be adopted in executing the powers grant-
ed, Chief Justice Marshall declares that they
must be appropriate, plainly adapted to the end,
not prohibited, and consistent with the letter and
spirit of the Constitution. Now, all through that
instrument we find limitations upon the power,
both of the General Government and the State
Governments, so as to prevent oppression and
injustice. No legislation, therefore, tending to
promote either can consist with the letter and
spirit of the Constitution. A law which inter-
feres with the contracts of others and compels
one of the parties to receive in satisfaction some-
thing different from that stipulated, without
reference to its actual value in the market, nec-
essarily works such injustice and wrong.

[468]

There is, it is true, no provision in the Constitution of the United States forbidding in di

may affect the prices of articles imported or man-
ufactured, so as to materially alter the value of
previous contracts respecting them. But these
incidental consequences arising from the exer-
cise of such powers were contemplated in the
grant of them. As there can be no solid objec.
tion to legislation under them, no just com-
plaint can be made of such consequences. But
far different is the case when the impairment of
the contract does not follow incidentally, but is
directly and in terms allowed and enacted. Leg-
islation operating directly upon private con-
tracts, changing their conditions, is forbidden
to the States; and no power to alter the stipula-
tions of such contracts by direct legislation is [469]
conferred upon Congress. There are also many
considerations, outside of the fact that there is
no grant of the power, which show that the
framers of the Constitution never intended that
such power should be exercised. One of the
great objects of the Constitution, as already ob-
served, was to establish justice, and what was
meant by that in its relations to contracts, as
said by the late Chief Justice in his opinion in
Hepburn v. Griswold, was not left to inference
or conjecture. And in support of this statement
he refers to the fact that when the Constitution
was undergoing discussion in the Convention,
the Congress of the Confederation was engaged
in framing the ordinance for the government of
the Northwest Territory, in which certain ar-
ticles of compact were established between the
people of the original States and the people of
the Territory "for the purposes," as expressed
in the instrument, "of extending the funda-
mental principles of civil and religious liberty,
whereon these Republics (the States united un-
der the Confederation), their laws and constitu-
tions, are erected." That Congress was also
alive to the evils which the loose legislation of
the States had created by interfering with the
obligation of private contracts and making notes
a legal tender for debts; and the ordinance de-
clared that in the just preservation of rights
and property 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." This prin-
ciple, said the Chief Justice, found more con-
densed expression in the prohibition upon the
States against impairing the obligation of con-
tracts, which has always been recognized "as
an efficient safeguard against injustice;" and
the court was then of opinion that "it is 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 Cou-
stitution was ordained to establish was not
thought by them to be compatible with legisla
tion of an opposite tendency." Soon after the
Constitution was adopted, the case of Calder v.

[470] Bull came before this court, and it was there

[490]

States for the Eastern District of Penn

The bill in this case was filed in the court below by the appellee, to recover damages alleged to have resulted from the infringement of certain letters patent.

The court below having entered a decree in favor of the complainant for $89,644.00, with costs, the defendant appealed to this court.

said that there were acts which the Federal and APPEAL from the Circuit Court of the United State Legislatures could not do without exceed-sylvania. ing their authority; and among them was mentioned a law which punished a citizen for an innocent act, and a law which destroyed or impaired the lawful private contracts of citizens. "It is against all reason and justice," it was added, "for a people to intrust a Legislature with such powers and, therefore, it cannot be presumed that they have done it." 3 Dall., 388. And Mr. Madison in one of the articles in the Federalist, declared that laws impairing the obligation of contracts were contrary to the first principles of the social compact, and to every principle of sound legislation. Yet this court holds that a measure directly operating upon and necessarily impairing private contracts, may be adopted in the execution of powers specifically granted for other purposes, because it is not in terms prohibited, and that it is consistent with the letter and spirit of the Constitution.

Messrs. George Harding, Andrew McCal lum, Francis T. Chambers and Chapman Biddle, for appellants:

There is nothing novel in the construction of the truck shown and described by Smith in his patent. It is shown and described in the patents to Kipple & Bullock, dated Dec. 20, 1859; and in those to Davenport & Bridges, dated May 4, 1841.

It did not involve patentable invention or
novelty, to adapt the well known swing truck
in use under cars, to the use of a swing truck
under a locomotive.

Harwood v. R. R. Co., 11 H. L. Cas., 654;
Bean v. Smallwood, 2 Story, 408; Hotchkiss v.
Greenwood, 11 How., 248; Brunton v. Hawkes,
4 B. & Ald., 540; Losh v. Hague, 1 Web. Pat.
Cas., 207.

Messrs. S. S. Hollingsworth and Ed-
mund Wetmore, for appellee.

From the decision of the court I see only evil likely to follow. There have been times within the memory of all of us when the legal tender notes of the United States were not exchangeable for more than one half of their nominal value. The possibility of such depreciation will always attend paper money. This inborn infirmity no mere legislative declaration can cure. If Congress has the power to make the notes a legal tender and to pass as money or its equivalent, why should not a sufficient amount be issued to pay the bonds of the United States as This is an appeal by the defendant below from they mature? Why pay interest on the millions a decree against it upon a bill in equity for the of dollars of bonds now due, when Congress infringement of letters patent granted on Feb- [491] can in one day make the money to pay the princi-ruary 11, 1862, to Alba F. Smith, for an im. pal? And why should there be any restraint provement in trucks for locomotive engines, upon unlimited appropriations by the govern- the specification annexed to which, except the ment for all imaginary schemes of public im- drawings and the letters referring to them and provement, if the printing press can furnish the the formal beginning and conclusion, was as money that is needed for them? follows:

PENNSYLVANIA RAILROAD COM-
PANY, Appt.,

v.

LOCOMOTIVE ENGINE SAFETY
TRUCK COMPANY.

(See S. C., Reporter's ed., 490-498.)

Mr. Justice Gray delivered the opinion of the court:

"Several laterally moving trucks have heretofore been made and applied to railroad cars. My invention does not relate broadly to such laterally moving trucks; but my said invention consists in the employment, in a locomotive engine, of a truck or pilot wheels provided with pendent links, to allow of a lateral movement, so that the driving wheels of the locomotive engine continue to move correctly on a curved track, in consequence of the lateral movement

Patent-right, when invalid—truck for railroad allowed by said pendent links, the forward part

1. The application of an old process or machine to a similar or analogous subject, with no change in the manner of applying it, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated.

2. In trucks already in use on railroad cars, the king-bolt which held the car to each truck passed through a bolster supporting the weight of the car, and through an elongated opening in the plate below, so as to allow the swiveling of the truck upon the bolt, and lateral motion in the truck; and the bolster was suspended by divergent pendent links from brackets on the frame, whereby the weight of the car tended to counteract any tendency to depart from the line of the track. Held, that a patent for employing such a truck as the forward truck of a locomotive engine with fixed driving

wheels, was void for want of novelty.

[No. 44.]

Argued Oct. 12, 1883. Decided Mar. 3, 1884.

*Head notes by Mr. Justice GRAY.

of the engine traveling as a tangent to the curve,
while the axles of the drivers are parallel, or
nearly so, to the radial line of the curve. In the
drawing, I have represented my improved truck
itself. The mode of applying the same to any
ordinary locomotive engine will be apparent to
any competent mechanic, as my truck can be
fitted in the place of those already constructed,
or the same may be altered to include my im-
provement."

The specification then refers to the drawings,
showing the wheels, the axles and the frame
of any ordinary locomotive truck, made in any
usual manner, with the center cross-bearing
plate or platform, of two thicknesses of iron
plate riveted together, strengthened by cross-
bars beneath, and embracing at its ends the up-
per bars of the frame; a bolster, made of a
flanged bar; the king-bolt, passing through the
center of the bolster and also through an elon-

112 [XXVI., 98]; Heald v. Rice, 104 U.S., 737 | invention in the manner in which the old proc-
754-756 [XXVI.,910, 916, 917]; Atlantic Works
7. Brady,107 U. S.,192 [XXVII., 438].

In the well known case of Crane v. Price, in which the English Court of Common Pleas upheld a patent for using anthracite, instead of bituminous coal, with the hot blast in smelting iron ore, the evidence, as Chief Justice Tindal remarked, proved beyond doubt that, in the result of the combination of the hot air blast with the anthracite, not only was the yield of the furnace more, and the expense of making the iron less, but "the nature, properties and quality of the iron were better," than under the former process by means of the combination of the [495] hot air blast with bituminous coal. 4 Man. & G.,580, 604; 5 Scott (N. R.), 338, 389; 1 Web. Pat. Cas., 393, 410. And the decision rests, as was pointed out by Chief Baron Pollock and Baron Parke in Dobbs v. Penn,3 Exch.,427, 432, 433, and by Mr. Justice Bradley in Hicks v.Kelsey, above cited, upon the ground that a new metal or composition of matter was produced. As observed by Mr. Justice Bradley, “In compositions of matter, a different ingredient changes the nature of the compound, whereas an iron bar in place of a wooden one, and subserving the same purpose, does not change the identity of a machine. 18 Wall., 674 [85 U.S., XXI., 853].

So in Smith v. Dental Co., in this court, as was observed by Mr. Justice Strong, in delivering its judgment, "A new product was the result, differing from all that had preceded it, not merely in degree of usefulness and excellence, but differing in kind, having new uses and properties." 93 U. S., 486, 494 [XXIII., 952, 954]. See, also, Dental Vulc. Co. v. Davis, 102 U. S., 222 [XXVI., 149].

Upon the principles which must govern this case, the decisions of this court and of the highest courts of England are in full accord, as will appear by referring to three cases, fully argued and considered, all of which were carried to the Exchequer Chamber, and two of which were finally decided in the House of Lords.

In Bush v. Fox, a patent for constructing the interior of a caisson or cylinder with successive chambers to work in," in such manner that the work-people may be supplied with compressed air, and be able to raise the material excavated, and to make or construct foundations and buildings," under water, when a similar apparatus had already been used for working underground on land, was held by Chief Baron Pollock, by the Court of Exchequer Chamber, and by the House of Lords, to be void for want of novelty, after able arguments in support of the patent by Sir Alexander Cockburn, then AttorneyGeneral, and by Mr. Webster, the accomplished patent counsel, at the successive stages of the case. Macrory, Pat. Cas. 152, 167, 179; 9 Exch., 651; 5 H. L. Cas.,707.

So the Court of Queen's Bench held that the finishing of yarns of wool orhair by a process previously applied to yarns of cotton and linen, by [496] subjecting them, while distended and kept separate, to the action of rotatory beaters or burnishers, by which they would be burnished or polished on all sides, was not the subject of a patent, because, as Lord Campbell said, in order to sustain a patent for the application of an old process to a new purpose, "there must be some

ess is applied;" "here there is no novelty in the
mode of application," but merely the applica-
tion of a known process by a known means to
another substance." Brook v. Aston, 27 L. J.
(N. S.) Q. B., 145; S. C., 4 Jur. (N. S.), 279; S.
C., with the opinion less fully reported, 8 El. &
Bl., 478. The judgment was unanimously af-
firmed in the Exchequer Chamber. Of the
opinions there delivered, it is sufficient to quote
from that of Baron Martin, who after express-
ing his concurrence in the statement of Mr. Jus
tice Willes, in Envelope Co. v. Seymer, 28 L. J.
(N. S.) C. P., 22, 24; S. C., 5 C. B. (N. S.), 164,
173; that "the application of a well known tool
to work previously untried materials, or to pro-
duce new forms, is not the subject of a patent,'
added, "When a machine is well known, it be-
comes in fact a tool." 28 L. J. (N. S.) Q. B.,
175, 176; 5 Jur. (N. S.), 1025, 1027.

But perhaps the most important English case
is that of Harwood v. Great Northern R. Co., 2
Best & S., 194, 222, and 11 H. L. Cas., 654.

In that case, a patent was obtained for "improvements in fishes and fish joints for connecting the rails of railways." In the specification, the patentee stated that in securing the joints of rails it had been found advantageous to attach to each side of the rails, by means of bolts and rivets, pieces of iron commonly called "fishes;" and described his invention as consisting in making the fishes with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts or rivets, and to prevent them from turning round while the nuts on the other side were being screwed on or off, and also to avoid the danger of the flanges of the wheels of the carriages striking against the heads; and he claimed "The constructing fishes for connecting the rails of railways, with a groove adapted for receiving the heads of the bolts or rivets em- [497] ployed for securing such fishes, and the application of such fishes for connecting the rails of railways."

In an action for the infringement of that patent, it appeared that fishes for connecting the rails of railways had never before been made with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts. But it was proved that, in the construction of several railway bridges, beams of timber had been laid horizontally one above the other, and fastened or bolted together with bolts and nuts; horizontal bars or plates of iron placed beneath, parallel to and in contact with the beams, and fastened or bolted by the same bolts and nuts; and each of these bars or plates of iron constructed with a groove in its under surface, which received the square heads of the bolts, and which served the double purpose of strength and of preventing the heads of the bolts from turning round. In those bridges, there were no joints to be fished by the bars or plates of iron, nor were there corresponding bars or plates of iron above the horizontal beams of timber. But it was also proved that a bridge, known as the Hackney Bridge, having too great a span to be conveniently crossed by a single beam, had been constructed with two horizontal longitudinal beams of timber on each side, the ends of which met and were joined together in the middle of the bridge by scarf-joints; that beneath those beams were transverse planks, constituting the