ernment up to this hour, and I find that this bill differs from all of them in several essential particulars. Every other law authorizing the issue of Treasury notes provided that they should bear some rate of interest, whereas these are to bear none; that they should be payable at a fixed time prescribed in the note, whereas these are only to be payable at the pleasure of the United States; that the notes thereby authorized should be receivable in payment of public debts only by those who were willing to receive them at par, while these notes are to be received by every public creditor who is not willing to forfeit his right to payment at all. These notes are to be made lawful money, and a legal tender in discharge of all pecuniary obligations, either by the Government or by individuals, a characteristic which has never been given to any note of the United States or any note of the Bank of the United States by any law ever passed. Not only, sir, was such a law never passed, but such a law was never voted on, never proposed, never introduced, never recommended by any Department of the Government; the measure was never seriously entertained in debate in either branch of Congress. "The feature of this bill which first strikes every thinking man, even in these days of novelties, is the proposition that these notes shall be made a legal tender in discharge of all pecuniary obligations, as well those which have accrued in virtue of contracts already made as those which are yet to accrue in pursuance of contracts which shall hereafter be made. Do gentlemen appreciate the full import and meaning of that clause? Do they realize the full extent to which it will carry them? Every contract for the payment of money is in legal contemplation a contract for the payment of gold and silver coin. That is the measure of the obligation of the one party, and of the right of the other. "The provisions of this bill contemplate impairing the obligation of every contract of that kind, and disturbing the basis upon which every judgment and decree and verdict has been entered. It proposes to say to a party who has entered into a contract, 'You shall be discharged from the obligations of that contract by doing something else than that which you have agreed to do.' It proposes to say to every party with whom a contract has been made, 'Though you are entitled to demand one thing, you shall, perforce, remain satisfied with the doing of another.' It proposes to say, 'Although you have agreed to pay gold and silver, you shall be discharged upon the payment of these notes; although you are entitled to demand gold and silver, you shall rest content with the reception of this paper.' It proposes, in one word, to release the one party from the obligation of his contract, and to divest the other party of the right which has been vested in him by that contract. Sir, I am sure I need only state the proposition to shock the mind of the legal profession of the country, so thoroughly has it been imbued with the idea of the sanctity of the obligation of contracts by those who have taught it the beneficent maxims of constitutional law. "As for the rest, this bill provides that it shall be illegal to make a contract for dealing in gold and silver coin; or, to state it more exactly, it provides that whatever executory contracts parties may make concerning the gold and silver coin of the country, they shall be discharged upon the performance of another and different duty-by the delivery of an equivalent number of dollars in these notes. Where, sir, does Congress get this power? Where is the grant to be found? One would suppose that a power like that-a power which involves the impairing of the obligations of such a vast class of contracts, which proposes to disturb vested rights to such an immense extent-would be worthy of a place in the express grants of the Constitution. "Sir, it seems to me that if the language of the Constitution, and the weight of authority can settle any proposition, it is that Congress has not the power to do that which it is proposed shall be done by the provisions of this bill." Mr. Hooper, of Massachusetts, stated that the financial plan of the Government embraced three measures: "The first of these measures is the one now before the House, by which the Secretary of the Treasury is authorized to issue United States notes, not to exceed $150,000,000 in amount (including those authorized by previous laws), of denominations not less than five dollars. They are not to bear interest, but are to be issued and received as money, convertible, at the option of the holder, into six per cent. stock of the United States, the principal and interest being payable either here or abroad; and these notes are to be a legal tender. "The second measure consists of a tax bill, which shall, with the tariff on imports, insure an annual revenue of at least $150,000,000. "The third is a national banking law, which will require the deposit of United States stock as security for the bank notes that are circulated as currency." Mr. Morrill, of Vermont, opposed the bill, saying: "The subject of issuing $150,000,000 of paper currency and making it a legal tender by the Government at a single bound-the precursor, as I fear, of a prolific brood of promises, no one of which is to be redeemed in the constitutional standard of the country-could not but arrest my attention; and, having strong convictions of the impolicy of the measure, I should feel that I utterly failed to discharge my duty if I did not attempt to find a stronger prop for our country to lean upon than this bill-a measure not blessed by one sound precedent, and damned by all." Mr. R. Conkling, of New York, argued against the necessity for the measure, and, alluding to the power conferred by the Constitu tion for the issue of demand notes, said: "The proposition is a new one. No precedent can be urged in its favor; no suggestion of the existence of such a power can be found in the legis lative history of the country; and I submit to my colleague, as a lawyer, the proposition that this amounts to affirmative authority of the highest kind against it. Had such a power lurked in the Constitution, as construed by those who ordained and administered it, we should find it so recorded. The occasion for resorting to it, or at least referring to it, has, we know, repeatedly arisen; and had such a power existed, it would have been recognized and acted on. It is hardly too much to say, therefore, that the uniform and universal judgment of statesmen, jurists, and lawyers has denied the constitutional right of Congress to make paper a legal tender for debts to any extent whatever. But more is claimed here than the right to create a legal tender heretofore unknown. The provision is not confined to transactions in futuro, but is retroactive in its scope. It reaches back and strikes at every existing pecuniary obligation. This was well put by the gentleman from Ohio (Mr. Pendleton), and I concur with him, that substituting anything for gold and silver in payment of debts, and still more of precedent debts, is of very doubtful constitutionality. But, in looking at the Federal Constitution, the question is: has the power been given; is it there? Can you put your finger upon it among the grants of the Constitution? If not, if it is not there at all, you have not the power, and there is an end of the whole matter." Mr. Bingham, of Ohio, took the position that Congress had the power to declare what should be a legal tender, and said: "In the first place, the Constitution has expressly provided that Congress shall have power to regulate commerce with all foreign nations, among the several States, and with the Indian tribes. This general provision of the Constitution has frequently undergone interpretation in our Supreme Court, and the effect of this language has been matter of deliberate consideration with every man who has ventured to issue a treatise upon the Constitution of the United States. Whoever takes the pains to look into either of these authorities-the decisions of the Supreme Court or the writers upon the true construction of the Constitution -will discover that they all agree in this, that this power to regulate commerce includes the exercise of all powers necessary to the existence of commerce among the several States, and extends even to its prohibition, when the public necessities require it. This, I undertake to say, is matter of agreement among all who have written upon the construction of the Constitution, and is substantially the ruling of the Supreme Court. Sir, if there were no limit in the Constitution upon this general power of Congress to regulate commerce, I would say at once that the Congress of the United States might make anything money which it pleased. But there are certain limitations in the Constitution. Money has a twofold office. It determines the standard of value on the one hand, and it discharges obligations on the other. There is a limitation, and I am free to admit it. That brings me to the very pith and marrow of this debate. "What is that limitation? That is the important point. I desired to-day to ask the attention of my excellent friend from Vermont (Mr. Morrill) to the question whether the Constitution of the United States has declared what shall be a legal tender. He did not find it convenient to yield to me for that inquiry. I stand here to assert that the Constitution of the United States has nowhere declared what shall be a legal tender. I stand here to assert further, that nothing has ever been made a legal tender in the United States at any time, in discharge of private obligations, or of public obligations, or of universal application in States and Territories alike, except that which was made so by act of Congress. Your Constitution, I repeat, never made gold and silver a legal tender. It never made anything a legal tender in the discharge of debts. The Constitution simply conferred the power on Congress by its general grants of power to declare by law what shall be a legal tender. Gold and silver and copper, if I recollect aright and if I am wrong I hope the venerable chairman of the Committee of Ways and Means will correct me-have been all made alike legal tenders, at one time or other, by act of Congress." Mr. Morrill, of Vermont, next rose and said: "I ask my friend from Ohio to point out as many words giving Congress the power to make paper money a legal tender. In relation to foreign coin, everybody who made a contract did so with his eyes open to the fact that Congress might make a change in regard to that matter. But when it comes to making paper money a legal tender, there is not a word in the Constitution about it." Mr. Bingham, of Ohio, immediately replied: Says the gentleman from Vermont (Mr. Morrill), 'I ask my friend from Ohio to point out as many words giving Congress power to make paper money a legal tender.' "Sir, the gentleman's question is answered by asking another of him: Point out the words in the Constitution giving to Congress the power to make gold or silver coin, either foreign or domestic, a legal tender. There are no such words. The gentleman seems to infer, because Congress is expressly authorized to regulate the value of foreign coin,' it is therefore in words authorized to declare foreign coin a legal tender. Such a conclusion is by no means selfevident. The Constitution declares that 'no State shall make anything but gold and silver coin a tender in payment of debts.' No one doubts, I presume, that any State of the Union may make the legalized gold and silver coin of the United States a tender in payment of debts; but does it thence result that a State may either regulate or change the established value of foreign or domestic coin? If any State could do this, the very purpose of the Constitution, to secure a uniform standard of value, would be defeated. "The point I make is this: Congress has power, by the terms of the Constitution, to fix the standard value of foreign coin, and of domestic coin, and the power to declare a legal tender, and that these powers are distinct." Mr. Vallandigham, of Ohio, rose to ask a question, saying: "Congress, is, by the Constitution, expressly empowered to regulate the value of coins. Now, I wish to ask my colleague whether the value thus regulated is not the legal value of the coin; and if therefore it is not a legal tender, although the word 'tender' is not written in the Constitution?" Mr. Bingham, of Ohio, replied: "I agree that what Congress declares and enacts shall be the value of coin, is the legal value of such coin; but, sir, an act declaring the legal value of coin does not make it a legal tender." Mr. Hickman, of Pennsylvania, now rose to inquire: "I desire to ask the gentleman from Ohio (Mr. Vallandigham) a simple question, with his permission. Taking the standard of gold and silver as it is established by law today, a contract is entered into for the payment of a debt in gold and silver at the present standard, that being by law a legal tender; but suppose the gold and silver should before the debt becomes due, by act of Congress, be debased thirty-three per cent., can that coin so debased be made a legal tender for the payment of that debt?" Mr. Vallandigham replied: "It may be made a legal tender if Congress has the power to debase coin; but I deny that the power conferred by the Constitution on Congress to coin money and regulate the value thereof, confers the power to debase the coin of the country. There is no such power in Congress; and I think that is a sufficient answer to the gentleman's question." Mr. Hickman, of Pennsylvania, again said: "Congress has, from time to time, changed the alloy of gold and silver coin. Now, if it may make coin so alloyed a legal tender in payment of a debt arising out of a contract, and in the mean time, before the debt becomes due, Congress again changes the alloy, debasing the coin to the extent of one third its value, can that coin so debased be made a legal tender in payment of that debt? Would not that, by the argument of the opponents of this bill, be as much a violation of that clause of the Constitution as to make paper a legal tender?" Mr. Vallandigham now made this reply: "I answer, that if the purpose of the act of Congress be simply to change the alloy in order to harden the metal and make it more serviceable for the purposes of a currency, not to change its value, Congress has certainly the right to do it; but because Congress has the implied right to do that under the power to coin money and regulate the value thereof, it does not follow that it may alloy the coin for the purpose of debasing it. The intent of the act makes the distinction." Mr. Morrill, of Vermont, next rose to ask Mr. Hickman a question, saying: "If Congress have the power to debase the coin of the country by mixing with the gold and silver, in the shape of alloy, other metals, I desire to ask the gentleman from Pennsylvania if he derives from that fact the power of Congress to debase it in any other way." Mr. Hickman thus replied: "The question I asked the gentleman from Ohio was in answer to the argument which has been made here by the opponents of this bill, that Congress can pass no law impairing the obligations of contracts; yet if a contract is made to-day by which I am to be paid a certain amount in the present standard of gold and silver coin, and tomorrow Congress passes a law debasing that coin thirty-three per cent., I am required to take that debased coin in payment of the debt, and my contract is thus impaired to the extent of thirty-three per cent." Mr. Morrill further said: "I admit the power of Congress to debase the coin; but how would the gentleman derive from that power the power of Congress to substitute as a legal tender something else than coin?" Mr. Thomas, of Massachusetts, now asked a question of Mr. Hickman, saying: "When the gentleman from Pennsylvania says the obligation of a contract is impaired, I want to ask him if in law this very essential provision of the Constitution does not enter into the contract, and if the contract must not conform to it? For instance, when a man agrees to take so much coin at a future day, he does it knowing that Congress has, by the Constitution, power to regulate and change the value of that coin." Mr. Hickman, in answer, said: "Yes, sir, and for that reason, inasmuch as the Constitution allows us, as I contend, the power to issue paper money, the man who enters into a contract does it with the Constitution before him. Now, allow me in turn to put a question to the gentleman from Massachusetts. Suppose gold and silver should be discovered in such quantities in California, or within the limits of the United States, as to make it as plentiful as iron, as to make it useless as a money standard, Í wish to know whether it is not in the power of Congress to substitute some other metal which may be more desirable as a circulating medium than gold?" Mr. Thomas: "That question does not now arise." Mr. Hickman: "If that power be conceded, then why not substitute paper, if that shall be found more useful for that purpose?" Mr. Crisfield, of Maryland, said: "The sum of the whole argument that has been made in favor of the constitutionality of the power of Congress to declare the Treasury notes contemplated by this bill a legal tender in the payment of all debts, public and private, may be stated in these three propositions: first, Congress may declare these notes a legal tender because it is not inhibited; secondly, the Government must maintain itself, and Congress may exercise all the power and adopt any measure it judges necessary for that object; and thirdly, that the power to declare these notes a legal tender is a means necessary and proper to the full execution of the power to regulate commerce. "The Constitution found gold and silver coin the medium in which all contracts were to be settled. It recognized, but did not seek to disturb it. It gave Congress no power to disturb it, and inhibited the States from making anything else a tender in payment of debts. And we have no power to alter what the Constitution chose to leave untouched. We have no constitutional power to pass this bill." Mr. Pike, of Maine, followed, saying: "In my judgment, any measure of finance now as sumes the highest character. The existence of the Government depends upon a successful administration of the finances. Crippled here, we are balked everywhere. Upon the consideration of every financial measure there might well present itself anew the same question so fitly put by President Lincoln, in his message to Congress in July: Is it better to assume powers, the exercise of which shall violate a portion of the Constitution, rather than allow the whole to be destroyed?' and the country come to the paradoxical conclusion that it was his duty, as President, to violate the Constitution in order to preserve it. "I trust that I have as much respect for that instrument as any man in the House; and it is because I would not have its authority over any portion of the Union impaired that I am bold in the exercise of power under it. But I would construe it in the light of the rule authoritatively announced for our action: The Sabbath was made for man, and not man for the Sabbath.' for the exercise of thin constitutional pedantry. Let us act boldly and forcibly, and so discharge the high and solemn duty imposed upon us infinitely better than if we shrunk from action under fear of constitutional scruples." Mr. Alley, of Massachusetts, expressed his view of the constitutionality of the bill in these words: "This question of its constitutionality is hardly worthy of consideration in the face of the overshadowing necessities of the Government, for the reason that at most it can only be claimed as doubtful; for, to say the least, we have the authority of legal eminence as much in favor as against it; and every intelligent man knows, and will admit, outside of the legal profession, that legal enactments and constitutional provisions themselves have always in this country, whenever occasion required, with courts as well as statesmen, proved as packthreads upon the arms of an unshorn Samson before the resistless will of the people. "No, sir; not a man will oppose this bill, or vote against it, upon any constitutional grounds, unless he is opposed to it for other and satisfactory reasons. This question of making paper money legal tender has never before been seriously entertained or discussed in this country since the adoption of the Federal Constitution, because the emergency has never before arisen to make it necessary.' Mr. Wright, of Pennsylvania, rose in opposition to the bill; he said: "Mr. Chairman, I have never been more embarrassed in my life as to how I should cast my vote than I am in regard to the vote I am about to cast upon this bill; for, as I live, I have no object or desire to embarrass the Government in regard to any of its measures, or the measures of any of the committees of this House, which have in view the putting down the rebellion now upon our hands. I am willing to do anything I constitutionally can, to bring about that result which, of all others, is most desirable; but at the same time, Mr. Chairman, I have the obligations of a constitutional oath resting upon me. not desire, and it is not my intention, unless we arrive at a period when there are more difficulties surrounding us than there are now, to violate the obligations of that oath. If it is to be done, it must be done in a case of more extremity than we have now upon us. I do "I have a high respect for the motives of gentlemen who discover so many constitutional objections to contemplated action; but for myself, I have concluded that whatever has a "I was going on to state that I voted, during tendency to furnish means to suppress this re- the extra session of Congress, to affirm the act bellion, and affords a reasonable probability of of the President of the United States in the hastening the consummation of what all loyal suspension of the writ of habeas corpus. I men so much desire, is perfectly constitutional. voted also to approve his act by which he deNothing but an absolute prohibition would pre-clared certain of our seaports in a state of vent me from adopting a measure which an- blockade. I also voted to approve his act deswers these conditions. I will never render to claring the establishment of military law. I my people as a reason why I voted against such did it for the sole reason that I regarded, at a measure that I deemed it unconstitutional, that time, that the exigency had arisen which nor will I assist this Congress in proclaiming to justified us and the President of the United the world and sending down to posterity the States himself in violating a constitutional prolack of constitutional power as a reason for vision. It was a vote in extremis. I voted the failing to enact any law which will have a ten- other day also to give the President of the dency to preserve this Union. This is no time United States the control of all the railroads in VOL. II.-21 322 the country for the transmission of troops. Nay, I went further than that, and voted for a clause in that bill which gave to the President the privilege of bringing into the public service the officers and employés of all the railroads of the country. I did that because it And now we are called upon, according to the terms of this bill, to vote to declare it to be constitutional and legal to make paper itself money. Now, sir, I do not feel justified in going so far as to cast my vote for any such measure. was an extreme case. "It is said that this is among the great powers of the Government. Why, sir, all the powers this Government has under the Constitution are the powers delegated to it by the several States which thus met in Convention. There is no such thing in construing the Constitution as inference. There is nothing to be implied. The States that met together in convention clothed Congress with all the powers, in express terms, that Congress can legitimately exercise under the Constitution. Who doubts that? Who can gainsay that proposition? Not one iota of power does this Congress possess save what it derives under the Constitution. In plain terms have the States written their charter. It is in language not to be misunderstood. The powers of the General Government are expressed in the debates and votes of the men who gave it existence; in the decisions of the Supreme Court of the United States, and of the supreme courts of the several States; and in the views and votes of our predecessors in the halls of Congress. It seems to me that it is vain on our part to attempt to override these conclusions and to set them at nought, in the delusive idea that we have a clearer view and a keener perception of the powers with which this Government is clothed than had these worthy men who have gone before us. "I lay down the principle that we are to conform our action to the Constitution of the country as it is, and I call upon gentlemen to show me how, when, where, in what particular, we have power, under the Constitution, to make anything, except gold and silver, a legal tender? I think, Mr. Chairman, it cannot be done. If it can be done, then courts, members of conventions, and the statesmen who have gone before us, have committed an egregious error, and we are coming now to perform the solemn act of condemning their judgment and of setting all their precedents at defiance.' Mr. Kellogg, of Illinois, said: "What is this legal tender? Is it found in the Constitution. Gentlemen seem to admit everywhere that gold and silver are a legal tender. I challenge any gentleman to put his finger upon the clause of the Constitution that expressly declares that anything shall be a legal tender, or that Congress shall have the power to make anything a legal tender. You cannot find it. Yet, sir, everybody seems to understand that gold and silver are a legal tender. What is it that the That Congress shall Constitution declares? have power to regulate commerce, to_coin money, and regulate the value thereof. What is this power of coining money and the regulation of the value thereof? Certainly the power to issue anything in the nature of coin that is to operate as a circulating medium. Gold and silver are not mentioned here, and there is not a gentleman who will not admit that the Government can coin and make money out of iron, or brass, or copper." Mr. Thomas, of Massachusetts, followed on the other side. He said: "We look to the Constitution to see if the power is given. We do not say the power is not denied, and therefore exists; but that it is not granted, and therefore does not exist. The powers granted are express or implied, are given in terms, or are the reasonable inferences from the express grants. Now it is conceded that there is no express power given to Congress to make the notes or bills of the Government legal tender. There is a power given to Congress upon the subjectmatter. It has the power to coin money, regulate the value thereof and of foreign coins. "These words, 'to coin money,' have a plain The only coinage is and obvious meaning. To coin that of the metals, hard money.' money and regulate the value thereof is to fix its legal value, the value for which it is to be received, as an equivalent in commerce and in discharge of obligations and contracts. This constitutional power of coinage was first executed by the statute of 1792; and that statute has a provision making the coins legal tender; but there can be no doubt that whenever money is coined by Government under the Constitution it becomes ipso facto legal tender. But whether legislation be necessary to carry the provision into effect or not, it is too plain for argument that the power to coin money and regulate its value is the power to say for what value it shall be received. "There being no express power in the Constitution to make the notes a legal tender, is such a power to be reasonably inferred from any of the express powers? Before answering this question, two things are to be observed. "The first is that there being an express grant of power upon this subject of the coining of money and fixing its legal value, we should not reasonably expect to find an additional power on the same subject given by implication. The expression of the one would ordinarily be the exclusion of the other. The second thing to be noted is that it appears by the debates of the convention, and by the note of Mr. Madison, that this subject was before the convention, and that a grant of power to emit bills of credit, with the apparent purpose of making them legal tender, was refused. "It is said that the power to make these notes a legal tender is a reasonable implication from the power to regulate commerce with foreign nations, among the States, and with the Indian tribes. The argument is, and it is |
