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Democratic platform of the same year, adopted at Louisville, Kentucky, the old term for the Nation was used, Federal Union. In 1876, the Democratic and Republican platforms presented the same contrast. The Republicans of 1872 strongly demanded the enforcement of the Thirteenth, Fourteenth and Fifteenth amendments, to which subject the platform of their opponents made no reference. But in 1876, the platform on which Tilden and Hendricks were nominated, affirmed the devotion of the Democratic party to the Constitution with its amendments universally accepted as a final settlement of the controversies which had engendered Civil War. ”2

It was not until 1876, the centennial of American independence, that any political party proclaimed that "the United States is a Nation not a league.” The Republicans in the same clause in which they announced this profound constitutional truth, also defined our dual civil system as "the combined workings of national and State governments.” This idea, clear enough to us now and undoubtedly an ever present force in the evolution of American government from the beginning, was not realized by the people until after the war. The mighty changes wrought during the first century of the Republic were well expressed in the saying, which became true after the Centennial year, that the United States of America is a Nation not a league. This concept of our National Government may be contrasted with that expressed in the platform on which Buchanan and Breckinridge were elected in 1856,that the Democratic party would abide by the principles laid down in the Kentucky and Virginia resolutions of 1798, and that it adopted them as the main foundations

1 Democratic (straight out) Convention, September 3, 1872. 2 Democratic Convention, St. Louis, June 27-29, 1876.




of its political creed.1 We have seen how throughout the evolution of our government the two ideas which have stood in sharpest antagonism and between which there is a bridgeless gulf, are the doctrines of '98 and the principles of national sovereignty.

The later exposition of the law of the Constitution has tended to enlarge the jurisdiction of the United States beyond the limits assigned it by many of our earlier statesmen, even of the broad construction school. While many decisions might be cited in proof of this assertion, a few will suffice. The extraordinary stimulus which the war gave to all kinds of industry bred the habit among the people of looking with toleration upon this extended jurisdiction. Of this the legal tender cases afford an illustration.

In February, 1862, and by subsequent acts, Congress empowered the Secretary of the Treasury to issue United States notes making them a legal tender. They circulated among the people as money, but fluctuated greatly in value, and gradually, as the credit of the Government was fully established, they passed among the people as the equivalent of gold and silver coin. The Court of Appeals of the State of New York decided that they were money, and therefore, taxable as cash. But this decision was reversed by the Supreme Court of the United States in 1868, the Court holding that these notes, or, as they were called, greenbacks, were securities but not money. While the New York case was on its way to a final decision, a similar one involving the legal tender quality of the notes had arisen in Kentucky, and reached the Supreme Court

1 Democratic Convention, Cincinnati, June 2-6, 1856; also found in the platform of the Democratic party adopted at Baltimore, June 1-4, 1852.

2 The Bank vs. Supervisor, 7 Wall., 26.



about the same time. The opinion was delivered by ChiefJustice Chase, in 1869.7 The Court at this time consisted of eight members, of whom five held, that inasmuch as the act of 1862, by construction declared these notes to be legal tender in payment of pre-existing debts, it was inconsistent with the principles of the Constitution and was not a law necessary and proper for carrying into execution the powers vested in the national government. The Chief-Justice was Secretary of the Treasury at the time the law had been enacted, and was, indeed, its author. His judicial opinion, therefore, was considered a reversal of his opinion as Secretary in 1862. He now held that the nearly four hundred millions of dollars in paper which had been issued under the various acts, were not a legal tender, and that the cause of their free circulation among the people was their quality of receivability for public debts, and not their quality as legal tender notes; therefore, the acts creating them were unconstitutional. Four of the associate justices agreed with the Chief-Justice, but three dissented; Mr. Justice Miller holding that the acts were necessary and proper to execute the powers vested by the Constitution in the National Government, and that Congress had the choice of means and was empowered to use any which in its judgment might bring about the end desired.

The Republican party, which controlled both Houses of Congress at this time, and President Grant, did not sympathize with the decision of Chief-Justice Chase. The party leaders determined to make possible a decision more favorable to their views, and an act maintaining the judicial system of the United States was passed by which the Supreme Court was enlarged so as to consist of nine

1 Hepburn vs. Griswold, 8 Wall., C03,



Justices, of whom six should constitute a quorum.' Mr. Justice Grier soon after resigned and President Grant nominated and the Senate confirmed the appointment of William Strong, of Pennsylvania, and Joseph P. Bradley, of New Jersey, to fill the two vacancies in the Court. It was known that Strong and Bradley did not hold to the opinion of Chief-Justice Chase, as to the constitutionality of the legal tender acts. Another case involving the legal

1 tender quality of the notes reached the Court in the December term, 1870, and was decided on the first of May following. The decision handed down by the Chief-Justice the year before was reversed and the legal tender acts were held to be constitutional both as affecting contracts made before their enactment and those made afterward; and the opinion of the minority in the former decision was now elaborated by Mr. Justice Strong as the opinion of the Court. But he greatly enlarged the scope of the inquiry, so that it now comprehended the fundamental question whether Congress could give the quality of money to United States notes. To this query the decision of the Court was a complete answer. It asserted that Congress has power to legislate; that the promise of the government to pay money, that is, the legal tender notes, should be for the time being equivalent in value to gold and silver coin and that a contract calling for dollars could be legally fulfilled by the promise of the government to pay dollars.? From this opinion Chief-Justice Chase and Justices Nelson, Field and Clifford dissented, holding that the decision would sustain an emission of paper currency; that the Constitution forbids any State to make anything but gold and silver a legal tender, and that the National Government can constitutionally do no more than coin gold and silver

1 Act of April 10, 1869; Statutes at Large, XVI, 44. The Legal Tender Cases; 12 Wall., 457 (1871),



and regulate its value and that of foreign coin. The government could emit Treasury notes as a means of borrowing money, but it could not make them money or a legal tender for money.

Twelve years later a third case involving the legal tender quality of the notes reached the Court, and its inquiry into the principle involved was carried further than before. In the earlier decision” the constitutionality of the legal tender acts had been sustained on the ground that they came within the power of Congress to declare war, and therefore, this power imparted a legal tender quality to United States notes. But in the case now before the Court, the question was enlarged. Could such notes issued in time of war under acts of Congress, declaring them to be a legal tender in payment of private debts, and afterward in time of peace, redeemed and paid in gold coin at the Treasury, and then re-issued under the act of 1878,3 be constitutionally a legal tender in payment of such debts ? In answering this question the Court fell back on the reasoning of Chief Justice Marshall as to the scope and extent of the implied powers of Congress. Marshall held that the people of the United States, by the Constitution had established a National Government with sovereign powers, legislative, executive and judicial, and his definition was now applied to its full extent. The great ChiefJustice had delivered a judgment, said the Court, adverse to the powers of the States to issue legal tender notes. He had sustained the power of Congress to charter a bank, whose issue circulated as money, and the application of the principle which he had elucidated as recorded in the

1 Juilliard vs. Greenman, 110 U. S., 421 (1883).
2 Hepburn vs. Griswold.
8 May 31, 1878, Statutes at Large, XX, 87.
4 McCullough vs. Maryland, 4 Wheaton, 316 (1819).

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