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ing 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 payment of pre-existing debts 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 post offices and post roads, for example, involves the collection and disbursement of a great 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 confuse the boundaries which separate the executive and judicial from the legislative authority. 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 the description.

Now, then, let it be considered what has actually been done in the provision of a 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.* They were made receivable in payments, but were not declared a legal tender until March, 1862,† when the amount in circulation had been greatly reduced by receipt and cancellation. In

*12 United States Stats., 259, 313, and 338. †12 United States Stats., 370.

1862 and 1863* 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 restrictious 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,† 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, the issue of $300,000,000 in notes of the 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 amount, exclusive of interest. Such were the one and two years five per cent. notes and three years compound interest notes. 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 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 tender. That it was carried no further during the recent civil war, and has been carried no further since, is due to circumstances, the consideration of which does not belong to this discussion.

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 circula

*12 United States Stats., 345, 532, and 709. †12 United States Stats., 711. 12 United States Stats., 669. †13 United States Stats., 218, 425.

altogether to making it a legal tender. But this increases these evils. It certainly widens their extent and protracts their continuance.

tion and credit was due to the provision made | It is true that these evils are not to be attributed by law for the redemption of this paper in legaltender 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 author ity of the government, and made receivable for dues of 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 this quality of receivability, and not upon the quality of legal tender, that reliance for 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.

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 powers 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 pre-existing debts.

But there is another view which seems to us These facts certainly are not without weight decisive, to whatever express power the supposed as evidence that all the useful purposes of the implied power in question may be referred. In notes would have been fully answered without the rulestated by Chief Justice Marshall the words making them a legal tender for pre-existing debts."appropriate," "plainly adapted," "really calcuIt is denied, indeed, by eminent writers, that lated," are qualified by the limitation that the the quality of legal tender adds anything at all means must be not prohibited, but consistent with to the credit or usefulness of government notes. the letter and spirit of the Constitution. Nothing They insist, on the contrary, that it impairs both. so prohibited or inconsistent can be regarded as However this may be, it must be remembered appropriate, or plainly adapted, or really calcuthat it is as a means to an end to be attained by lated means to an end. the action of the government that the implied Let us inquire, then, first, whether making bills power of making notes a legal tender in all pay-of credit a legal tender, to the extent indicated, ments is claimed under the Constitution. Now, is consistent with the spirit of the Constitution. 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 How from the use of irredeemable paper money.

Among the great cardinal principles 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 territory northwest of the Ohio, the only territory subject at that time to its regulation and control. By this ordinance certain fundamental articles of compact were established 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 injustice, that

"no State shall pass any law impairing the obli- | scription of property are protected by it from gation of contracts."

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.

Another provision, found in the Vth 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 obligation 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 and 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 consideration, 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 these 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 de

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 invoke its protection against legislation which, by authorizing similar works or corporations, reduces 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 holders of the stock were required by law 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 fifty or seventy-five acres of land in satisfaction of a contract to convey a hundred 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 the calmer time, 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 February 25, 1862. It follows that the judgment of the court of appeals of Kentucky must be affirmed.

It is proper to say that Mr. Justice Grier, who | and of foreign coin, and to punish the counterwas a member of the court when this cause was feiting of such coin and of the securities of the decided in conference, and when this opinion United States. It has been strongly argued by was directed to be read,† stated his judgment to many able jurists that these latter clauses, fairly be that the legal-tender clause, properly con- construed, confer the power to make the securistrued, has no application to debts contracted ties of the United States a lawful tender in payprior to its enactment; but that upon the con- ment of debts. struction given to the act by the other judges he concurred in the opinion that the clause, so far as it makes United States notes a legal tender for such debts, is not warranted by the Constitution.

Dissenting Opinion.

Mr. Justice Miller dissenting: The provisions of the Constitution of the United States which have direct reference to the tion of legislation may be divided into three primary classes:

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 func-granting express power over the lawful money of forbidden to the States; and it is no unreasonathe country, it was confided to Congress and ble 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 office of money be in harmony with the power over money in the payment of debts, such legislation would sub-granted in express terms.

1. Those which confer legislative powers on Congress.

2. Those which prohibit the exercise of legislative powers by Congress.

3. Those which prohibit the States from exercising certain legislative powers.

The powers conferred on Congress may be divided into the positive and the auxiliary, or, consideration would not, if exercised by ConIt being conceded, then, that the power under as they are more commonly called, the express gress, be an invasion of any right reserved to and the implied powers. the States, but one which they are forbidden to employ, and that it is not one in terms either tained as a law necessary and proper, at the time granted or denied to Congress, can it be susof these powers that are expressly granted, either it was enacted, for carrying into execution any to Congress or to the Government or to any department thereof?

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 auxiliary 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 powers. 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 utterances of that instrument on this subject of legal tender is that which declares that "No State shall coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts;" thus removing the whole matter from the domain of State legislation.

No such prohibition is placed upon the power of Congress on this subject, though there are, as I have already said, matters expressly forbidden to Congress; but neither this of legal tender, nor of the power to emit bills of credit or to impair the obligation of contracts, is among them. On the contrary, Congress is expressly authorized to coin money and to regulate the value thereof *Nov. 27, 1869. † Jan. 29, 1870.

under the present Constitution there have been From the organization of the Government 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 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 stitution, its necessity must be absolute, and its is brought to the test of this clause of the Conadaptation to the conceded purpose unquestion

able.

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a law was also denied. Chief Justice Marshall | to adopt any which might be appropriate and said: "It is claimed under the authority to which were conducive to the end. This provismake all laws which shall be necessary and ion is made in a constitution intended to endure proper to carry into execution the powers vested for ages to come, and consequently to be adapted by the Constitution in the Government or in any to various crises of human affairs. To have department thereof. In construing this clause, prescribed the means by which the government it would be incorrect and would produce endless should in all future time execute its powers difficulties, if the opinion should be maintained would have been to change entirely the characthat no law was authorized which was not indis-ter of the instrument, and giye it the properties pensably necessary to give effect to a specified of a legal code. It would have been an unwise power. Where various systems might be adopted attempt to provide by immutable rules for exifor that purpose, it might be said with respect to gencies which, if foreseen at all, must have been each that it was not necessary, because the end but dimly, and which can best be provided for might be attained by other means. Congress as they occur. To have declared that the best must possess the choice of means, and must be means shall not be used, but those alone without empowered to use any means which are in fact which the power given would be nugatory, conducive to the exercise of the power granted would have been to deprive the legislature of the by the Constitution." capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."

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 cases of bankruptcy.

But in the memorable case of McCulloch vs. The State of Maryland, (4 Wheaton, 316,) the most exhaustive discussion of this clause is found in the opinion of the court by the same eminent expounder of the Constitution. That case involved, it is well known, the right of Congress to establish the Bank of the United States and to authorize 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 means 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 import 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 imports 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 entirely unattainable."

The word necessary admits, he says, of all degrees of comparison. "A thing may be necessary, very necessary, absolutely or indispensably * * * necessary. "This 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 all 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

I 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 in the field, which could by no other means be paid, seem 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 in this very case have rendered the power to carry on war nugatory, which would have deprived Congress of the capacity to avail itself of experi ence, 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 it.

The idea is not new, and is probably intended for the same which was urged in the case of McCulloch vs. 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 ancillary 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, in the execution of which this legal-tender act was necessary and proper, in the sense here defined, 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.

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