each to contain 371 grains and 4/16ths parts of a grain of pure silver, or 416 grains of standard silver. Like provision is also made for the coinage of half-dollars, quarter-dollars, dimes, and half-dimes, and also for the coinage of certain copper coins, but it is not necessary to enter much into those details in this case.

Provision, it must be conceded, is not there made, in express terms, that the money unit of the United States shall be one dollar, as in the ordinance pa.s.sed during the confederation, but the act under consideration a.s.sumes throughout that the coin called dollar is the coin employed for that purpose, as is obvious from the fact that the words dollars and units are treated as synonymous, and that all the gold coins previously described in the same section are measured by that word as the acknowledged money unit of the const.i.tution. Very strong doubts are entertained whether an act of congress is absolutely necessary to const.i.tute the gold and silver coins of the United States, fabricated and stamped as such by the proper executive officers of the mint, a legal tender in payment of debts. Const.i.tuted, as such coins are, by the const.i.tution, the standard of value, the better opinion would seem to be that they become legal tender for that purpose, if minted of the required weight and fineness, as soon as they are coined and put in circulation by lawful authority, but it is unnecessary to decide that question in this case, as the congress, by the 16th section of the act establishing a mint, provided that all the gold and silver coins which shall have been struck at, and issued from, the said mint shall be a lawful tender in all payments whatsoever--those of full weight "according to the respective values herein declared, and those of less than full weight at values proportioned to their respective weights."

Such a regulation is at all events highly expedient, as all experience shows that even gold and silver coins are liable to be diminished in weight by wear and abrasion, even if it is not absolutely necessary in order to const.i.tute the coins, if of full weight, a legal tender.

Enough has already been remarked to show that the money unit of the United States is the coined dollar, described in the act establishing the mint, but if more be wanted it will be found in the twentieth section of that act, which provides that the money of account of the United States shall be expressed in dollars or units, dimes or tenths, &c., and that all accounts in the public offices, and all proceedings in the federal courts, shall be kept and had in conformity to that regulation.

Completed, as the circle of measures adopted by congress were, to put the new government into successful operation, by the pa.s.sage of that act, it will be instructive to take a brief review of the important events which occurred within the period of ten years next preceding its pa.s.sage, or of the ten years next following the time when that measure was first proposed in the congress of the confederation. Two reasons suggest the 21st of February, 1782, as the time to commence the review, in addition to the fact that it was on that day that the committee of congress made their report approving of the project to establish a national mint. They are as follows: (1) Because that date just precedes the close of the war of the Revolution; and (2) because the date at the same time extends back to a period when all America had come to the conclusion that all the paper currency in circulation was utterly worthless, and that nothing was fit for a standard of value but gold and silver coin fabricated and stamped by the national authority. Discussion upon the subject was continued, and the ordinance was pa.s.sed, but the measure was not put in operation, as the convention met the next year, and the const.i.tution was framed, adopted, and ratified, the president and the members of congress were elected, laws were pa.s.sed, the judicial system was organized, the executive departments were created, the revenue system established, and provision was made to execute the power vested in congress to coin money and provide a standard of value, as ordained by the const.i.tution.

Perfect consistency characterizes the measures of that entire period in respect to the matter in question, and it would be strange if it had been otherwise, as the whole series of measures were to a very large extent the doings of the same cla.s.s of men, whether the remark is applied to the old congress, or the convention which framed the const.i.tution, or to the first and second sessions of the new congress, which pa.s.sed the laws referred to and put the new system of government under the const.i.tution into full operation. Wise and complete as those laws were, still some difficulties arose, as the several states had not adopted the money unit of the United States, nor the money of account prescribed by the twentieth section of the act establishing the mint.

Such embarra.s.sments, however, were chiefly felt in the federal courts, and they were not of long continuance, as the several states, one after another, in pretty rapid succession, adopted the new system established by congress both as to the money unit and the money of account.

Virginia, December 19th, 1792, re-enacted that section in the act of congress without any material alteration, and New Hampshire, on the 20th of February, 1794, pa.s.sed a similar law. Ma.s.sachusetts adopted the same provision the next year, and so did Rhode Island and South Carolina.

Georgia concurred on the 22d of February, 1796, and New York on the 27th of January, 1797, and all the other states adopted the same regulation in the course of a few years. State concurrence was essential in those particulars to the proper working of the new system, and it was cheerfully accorded by the state legislatures without unnecessary delay.

Congress established as the money unit the coin mentioned in the const.i.tution, and the one which had been adopted as such seven years before in the resolve pa.s.sed by the congress of the confederation.

Dollars, and decimals of dollars, were adopted as the money of account by universal consent, as may be inferred from the unanimity exhibited by the states in following the example of congress. Nothing remained for congress to do to perfect the new system but to execute the power to coin money and regulate the value thereof, as it is clear that the const.i.tution makes no provision for a standard of value unless the power to establish it is conferred by that grant.

Power to fix the standard of weights and measures is vested in congress by the const.i.tution in plain and unambiguous terms, and it was never doubted, certainly not until within a recent period, that the power conferred to coin money or to fabricate and stamp coins from gold and silver, which in the const.i.tutional sense is the same thing, together with the power to determine the fineness, weight, and denominations of the moneys coined, was intended to accomplish the same purpose as to values. Indubitably it was so understood by congress in prescribing the various regulations contained in the act establishing the national mint, and it continued to be so understood by all branches of the government--executive, legislative, and judicial--and by the whole people of the United States, for the period of seventy years from the pa.s.sage of that act.

New regulations became necessary, and were pa.s.sed in the meantime, increasing slightly the proportion of alloy used in fabricating the gold coins, but if those enactments are carefully examined, it will be found that no one of them contains anything inconsistent in principle with the views here expressed. Gold, at the time the act establishing the mint became a law, was valued 15 to 1 as compared with silver, but the disparity in value gradually increased, and to such an extent that the gold coins began to disappear from circulation, and, to remedy that evil, congress found it necessary to augment the _relative_ proportion of alloy by diminishing the required amount of gold, whether pure or standard. Eagles coined under that act were required to contain each two hundred and thirty-two grains of pure gold, or two hundred and fifty-eight grains of standard. Three years later congress enacted that the standard for both gold and silver coins should thereafter be such that, of one thousand parts by weight, nine hundred should be of pure metal and one hundred of alloy, by which the gross weight of the dollar was reduced to four hundred and twelve and a half grains, but the fineness of the coins was correspondingly increased, so that the money unit remained of the same intrinsic value as under the original act.

Apply that rule to the eagle, and it will be seen that its gross weight would be increased, as it was in fact by that act, but it continued to contain, as under the preceding act, two hundred and thirty grains of pure gold and no more, showing conclusively that no change was made in the value of the coins.

Double eagles and gold dollars were authorized to be "struck and coined"

at the mint, by the act of March 3, 1849, but the standard established for other gold coins was not changed, and the provision was that the new coins should also be legal tender for their coined value.

Fractional silver coins were somewhat reduced in value by the act of February 21st, 1853, but the same act provided to the effect that the silver coins issued in conformity thereto should not be a legal tender for any sum exceeding five dollars, showing that the purpose of the enactment was to prevent the fractional coins, so essential for daily use, from being h.o.a.rded or otherwise withdrawn from circulation.

Suppose it be conceded, however, that the effect of that act was slightly to debase the fractional silver coins struck and coined under it, still it is quite clear that the amount was too inconsiderable to furnish any solid argument against the proposition that the standard of value in the United States was fixed by the const.i.tution, and that such was the understanding, both of the government and of the people of the United States, for a period of more than seventy years from the time the const.i.tution was adopted and put in successful operation under the laws of congress. Throughout that period the value of the money unit was never diminished, and it remains to-day, in respect to value, what it was when it was defined in the act establishing the mint, and it is safe to affirm that no one of the changes made in the other coins, except perhaps the fractional silver coins, ever extended one whit beyond the appropriate limit of const.i.tutional regulation.

Treasury notes, called United States notes, were authorized to be issued by the act of February 25th, 1862, to the amount of $150,000,000, on the credit of the United States, but they were not to bear interest, and were to be made payable to bearer at the treasury. They were to be issued by the secretary of the treasury, and the further provision was that the notes so issued should be lawful money and legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest upon bonds and notes of the United States, which the act provides "shall be paid in coin." Subsequent acts pa.s.sed for a similar purpose also except "certificates of indebtedness and of deposit," but it will not be necessary to refer specially to the other acts, as the history of that legislation is fully given in the prior decision of this court upon the same subject.

Strictly examined it is doubtful whether either of the cases before the court present any such questions as those which have been discussed in the opinion of the majority of the court just read; but suppose they do, which is not admitted, it then becomes necessary to inquire in the first place whether those questions are not closed by the recorded decisions of this court. Two questions are examined in the opinion of the majority of the court: (1.) Whether the legal tender acts are const.i.tutional as to contracts made before the acts were pa.s.sed. (2.) Whether they are valid if applied to contracts made since their pa.s.sage.

a.s.sume that the views here expressed are correct, and it matters not whether the contract was made before or after the act of congress was pa.s.sed, as it necessarily follows that congress cannot, under any circ.u.mstances, make paper promises, of any kind, a legal tender in payment of debts. Prior to the decision just p.r.o.nounced it is conceded that the second question presented in the record was never determined by this court, except as it is involved in the first question, but it is admitted by the majority of the court that the first question, that is the question whether the acts under consideration are const.i.tutional as to contracts made before their pa.s.sage, was fully presented in the case of _Hepburn_ v. _Griswold_, and that the court decided that an act of congress making mere paper promises to pay dollars a legal tender in payment of debts previously contracted is unconst.i.tutional and void.

Admitted or not, it is as clear as anything in legal decision can be that the judgment of the court in that case controls the first question presented in the cases before the court, unless it be held that the judgment in that case was given for the wrong party and that the opinion given by the chief justice ought to be overruled.

Attempt is made to show that the second question is an open one, but the two, in my judgment, involve the same considerations, as congress possesses no other power upon the subject than that which is derived from the grant to coin money, regulate the value thereof and of foreign coin. By that remark it is not meant to deny the proposition that congress in executing the express grants may not pa.s.s all laws which shall be necessary and proper for carrying the same into execution, as provided in another clause of the same section of the const.i.tution. Much consideration of that topic is not required, as the discussion was pretty nearly exhausted by the chief justice in the case of _Hepburn_ v.

_Griswold_, which arose under the same act and in which he gave the opinion. In that case the contract bore date prior to the pa.s.sage of the law, and he showed conclusively that it could never be necessary and proper, within the meaning of the const.i.tution, that congress, in executing any of the express powers, should pa.s.s laws to compel a creditor to accept paper promises as fulfilling a contract for the payment of money expressed in dollars. Obviously the decision was confined to the case before the court, but I am of the opinion that the same rule must be applied whether the contract was made before or after the pa.s.sage of the law, as the contract for the payment of money, expressed in dollars, is a contract to make the payment in such money as the const.i.tution recognizes and establishes as a standard of value.

Money values can no more be measured without a standard of value than distances without a standard of extent, or quant.i.ties without a standard of weights or measures, and it is as necessary that there should be a money unit as that there should be a unit of extent, or of weight, or quant.i.ty.

Credit currency, whether issued by the states or the United States, or by private corporations or individuals, is not recognized by the const.i.tution as the standard of value, nor can it be made such by any law which congress or the states can pa.s.s, as the laws of trade are stronger than any legislative enactment. Commerce requires a standard of value, and all experience warrants the prediction that commerce will have it, whether the United States agree or disagree, as the laws of commerce in that respect are stronger than the laws of any single nation of the commercial world. Values cannot be measured without a standard any more than time or duration, or length, surface, or solidity, or weight, gravity, or quant.i.ty. Something in every such case must be adopted as a unit which bears a known relation to that which is to be measured, as the dollar for values, the hour for time or duration, the foot of twelve inches for length, the yard for cloth measure, the square foot or yard for surface, the cubic foot for solidity, the gallon for liquids, and the pound for weights; the pound avoirdupois being used in most commercial transactions and the pound troy "for weighing gold and silver and precious stones, except diamonds."

Unrestricted power "to fix the standard of weights and measures" is vested in congress, but until recently congress had not enacted any general regulations in execution of that power. Regulations upon the subject existed in the states at the adoption of the const.i.tution, the same as those which prevailed at that time in the parent country, and Judge Story says that the understanding was that those regulations remained in full force, and that the states, until congress should legislate, possessed the power to fix their own weights and measures.

Power to coin money and regulate the value of domestic and foreign coin was vested in the national government to produce uniformity of value and to prevent the embarra.s.sments of a perpetually fluctuating and variable currency.

Money, says the same commentator, is the universal medium _or common standard_ by a comparison with which the value of all merchandise may be ascertained; and he also speaks of it as "a sign which represents the respective values of all other commodities." Such a power, that is the power to coin money, he adds, is one of the ordinary prerogatives of sovereignty, and is almost universally exercised in order to preserve a proper circulation of good coin, of a known value, in the home market.

Interests of such magnitude and pervading importance as those involved in providing for a uniform standard of value throughout the Union were manifestly ent.i.tled to the protection of the national authority, and in view of the evils experienced for the want of such a standard during the war of the revolution, when the country was inundated with floods of depreciated paper, the members of the convention who framed the const.i.tution did not hesitate to confide the power to congress, not only to coin money and regulate the value thereof, but also the power to regulate the value of foreign coin, which was denied to the congress of the confederation.

Influenced by these considerations and others expressed in the opinion of the chief justice, this court decided in the case referred to, that the act of congress making the notes in question "lawful money and a legal tender in payment of debts" could not be vindicated as necessary and proper means for carrying into effect the power vested in congress to coin money and regulate the value thereof, or any other express power vested in congress under the const.i.tution. Unless that case, therefore, is overruled, it is clear, in my judgment, that both the cases before the court are controlled by that decision. Controversies determined by the supreme court are finally and conclusively settled, as the decisions are numerous that the court cannot review and reverse their own judgments.

But where the parties are different, it is said the court, in a subsequent case, may overrule a former decision, and it must be admitted that the proposition, in a technical point of view, is correct. Such examples are to be found in the reported decisions of the court, but they are not numerous, and it seems clear that the number ought never to be increased, especially in a matter of so much importance, unless the error is plain and upon the clearest convictions of judicial duty.

Judgment was rendered for the plaintiff in that case on the 17th of September, 1864, in the highest court of the state, and on the 23d of June in the succeeding year the defendants sued out a writ of error, and removed the cause into this court for re-examination. Under the regular call of the docket, the case was first argued at the December term, 1867, but at the suggestion of the attorney general an order was pa.s.sed that it be re-argued, and the case was accordingly continued for that purpose. Able counsel appeared at the next term, and it was again elaborately argued on both sides. Four or five other cases were also on the calendar, supposed at that time to involve the same const.i.tutional questions, and those cases were also argued, bringing to the aid of the court an unusual array of counsel of great learning and eminent abilities. Investigation and deliberation followed, authorities were examined, and oft-repeated consultations among the justices ensued, and the case was held under advis.e.m.e.nt as long as necessary to the fullest examination by all the justices of the court, before the opinion of the court was delivered. By law, the supreme court at that time consisted of the chief justice and seven a.s.sociate justices, the act of congress having provided that no vacancy in the office of a.s.sociate justice should be filled until the number should be reduced to six. Five of the number, including the chief justice, concurred in the opinion in that case, and the judgment of the state court was affirmed, three of the a.s.sociate justices dissenting. Since that time one of the justices who concurred in that opinion of the court has resigned, and congress having increased the number of a.s.sociate justices to eight, the two cases before the court have been argued, and the result is that the opinion delivered in the former case is overruled, five justices concurring in the present opinion and four dissenting. Five justices concurred in the first opinion, and five have overruled it. Persuaded that the first opinion was right, for the reasons already a.s.signed, it is not possible that I should concur in the second, even if it were true that no other reasons of any weight could be given in support of the judgment in the first case, and that the conclusion there reached must stand or fall without any other support. Many other reasons, however, may be invoked to fortify that conclusion, equally persuasive and convincing with those to which reference has been made.

All writers upon political economy agree that money is the universal standard of value, and the measure of exchange, foreign and domestic, and that the power to coin and regulate the value of money is an essential attribute of national sovereignty. Goods and chattels were directly bartered, one for another, when the division of labor was first introduced, but gold and silver were adopted to serve the purpose of exchange by the tacit concurrence of all nations at a very early period in the history of commercial transactions. Commodities of various kinds were used as money at different periods in different countries, but experience soon showed the commercial nations that gold and silver embodied the qualities desirable in money in a much greater degree than any other known commodity or substance. Daily experience shows the truth of that proposition, and supersedes the necessity of any remarks to enforce it, as all admit that a commodity to serve as a standard of value and a medium of exchange must be easily divisible into small portions; that it must admit of being kept for an indefinite period without deteriorating; that it must possess great value in small bulk, and be capable of being easily transported from place to place; that a given denomination in money should always be equal in weight and quality, or fineness, to other pieces of money of the same denomination, and that its value should be the same or as little subject to variation as possible. Such qualities, all agree, are united in a much greater degree in gold and silver than in any other known commodity, which was as well known to the members of the convention who framed the const.i.tution as to any body of men since a.s.sembled, and intrusted to any extent with the public affairs. They not only knew that the money of the commercial world was gold and silver, but they also knew, from bitter experience, that paper promises, whether issued by the states or the United States, were utterly worthless as a standard of value for any practical purpose.

Evidence of the truth of these remarks, of the most convincing character is to be found in the published proceedings of that convention. Debate upon the subject first arose when an amendment was proposed to prohibit the states from emitting bills of credit or making anything but gold and silver coin a tender in payment of debts, and from the character of that debate, and the vote on the amendment, it became apparent that paper money had but few, if any friends in the convention. Article seven of the draft of the const.i.tution as reported to the convention, contained the clause, "and emit bills on the credit of the United States,"

appended to the grant of power vested in congress to borrow money, and it was on the motion to strike out that clause that the princ.i.p.al discussion in respect to paper money took place. Mr. Madison inquired if it would not be sufficient to prohibit the making such bills a tender, as that would remove the temptation to emit them with unjust views.

Promissory notes, he said, in that shape, that is when not a tender, "may in some emergencies be best." Some were willing to acquiesce in the modification suggested by Mr. Madison, but Mr. Morris, who submitted the motion, objected, insisting that if the motion prevailed there would still be room left for the notes of a responsible minister, which, as he said, "would do all the good without the mischief." Decided objections were advanced by Mr. Ellsworth, who said he thought the moment a favorable one "to shut and bar the door against paper money;" and others expressed their opposition to the clause in equally decisive language, even saying that they would sooner see the whole plan rejected than retain the three words, "and emit bills." Suffice it to say, without reproducing the discussion, that the motion prevailed--nine states to two--and the clause was stricken out and no attempt was ever made to restore it. Paper money, as legal tender, had few or no advocates in the convention, and it never had more than one open advocate throughout the period the const.i.tution was under discussion, either in the convention which framed it, or in the conventions of the states where it was ratified. Virginia voted in the affirmative on the motion to strike out that clause, Mr. Madison being satisfied that if the motion prevailed it would not have the effect to disable the government from the use of treasury notes, and being himself in favor of cutting "_off the pretext for a paper currency, and particularly for making the bills a tender, either for public or private debts_." When the draft for the const.i.tution was reported the clause prohibiting the states from making anything but gold and silver a tender in payment of debts contained an exception, "in case congress consented," but the convention struck out the exception and made the prohibition absolute, one of the members remarking that it was a favorable moment to crush out paper money, and all or nearly all of the convention seemed to concur in the sentiment.

Contemporaneous acts are certainly evidence of intention, and if so, it is difficult to see what more is needed to show that the members of that convention intended to withhold from the states, and from the United States, all power to make anything but gold and silver a standard of value, or a tender in payment of debts. Equally decisive proof to the same effect is found in the debates which subsequently occurred in the conventions of the several states, to which the const.i.tution, as adopted, was submitted for ratification. Mr. Martin thought that the states ought not to be totally deprived of the right to emit bills of credit, but he says "that the convention was so smitten with the paper money dread that they insisted that the prohibition should be absolute."

Currency is a word much more comprehensive than the word money, as it may include bank bills and even bills of exchange as well as coins of gold and silver, but the word money, as employed in the grant of power under consideration, means the coins of gold and silver, fabricated and stamped as required by law, which, by virtue of their intrinsic value, as universally acknowledged, and their official origin, become the medium of exchange and the standard by which all other values are expressed and discharged. Support to the proposition that the word money, as employed in that clause, was intended to be used in the sense here supposed is also derived from the language employed in certain numbers of the Federalist, which, as is well known, were written and published during the period the question whether the states would ratify the const.i.tution was pending in their several conventions. Such men as the writers of those essays never could have employed such language if they had entertained the remotest idea that congress possessed the power to make paper promises a legal tender.

Like support is also derived from the language of Mr. Hamilton in his celebrated report recommending the incorporation of a national bank. He first states the objection to the proposed measure, that banks tend to banish the gold and silver of the country; and secondly he gives the answer to that objection made by the advocates of the bank, that it is immaterial what serves the purpose of money, and then says that the answer is not entirely satisfactory, as the permanent increase or decrease of the precious metals in a country can hardly ever be a matter of indifference. "As the commodity taken in lieu of every other, it (coin) is a species of the most effective wealth, and as the money of the world it is of great concern to the state that it possesses a sufficiency of it to face any demands which the protection of its external interests may create." He favored the incorporation of a national bank, with power to issue bills and notes _payable on demand in gold and silver_, but he expressed himself as utterly opposed to paper emissions by the United States, characterizing them as so liable to abuse and even so certain of being abused that the government ought never to trust itself "with the use of so seducing and dangerous an element." Opposed as he was to paper emissions by the United States, under any circ.u.mstances, it is past belief that he could ever have concurred in the proposition to make such emissions a tender in payment of debts, either as a member of the convention which framed the const.i.tution or as the head of the treasury department. Treasury notes, however, have repeatedly been authorized by congress, commencing with the act of 30th of June, 1812, but it was never supposed before the time when the several acts in question were pa.s.sed that congress could make such notes a legal tender in payment of debts. Such notes, it was enacted, should be received in payment of all duties and taxes laid, and in payment for public lands sold by the Federal authority. Provision was also made in most or all of the acts that the secretary of the treasury, with the approbation of the president, might cause treasury notes to be issued, at the par value thereof, in payment of services, of supplies, or of debts for which the United States were or might be answerable by law, to such person or persons as should be _willing to accept the same_ in payment, but it never occurred to the legislators of that day that such notes could be made a legal tender in discharge of such indebtedness, or that the public creditor could be compelled to accept them in payment of his just demands.

Financial embarra.s.sments, second only in their disastrous consequences to those which preceded the adoption of the const.i.tution, arose towards the close of the last war with Great Britain, and it is matter of history that those embarra.s.sments were too great and pervading to be overcome by the use of treasury notes or any other paper emissions without a specie basis. Expedients of various kinds were suggested, but it never occurred either to the executive or to congress that a remedy could be found by making treasury notes, as then authorized, a legal tender, and the result was that the second bank of the United States was incorporated. Paper currency, it may be said, was authorized by that act, which is undoubtedly true; and it is also true that the bills or notes of the bank were made receivable in all payments to the United States, if the same were at the time payable on demand, but the act provided that the corporation should not refuse, under a heavy penalty, the payment in gold and silver, of any of its notes, bills, or obligations, nor of any moneys received upon deposit in the bank or in any of its offices of discount and deposit.

Serious attempt is made, strange to say, to fortify the proposition that the acts in question are const.i.tutional from the fact that congress, in providing for the use of treasury notes, and in granting the charters to the respective national banks, made the notes and bills receivable in payment of duties and taxes, but the answer to the suggestion is so obvious that it is hardly necessary to pause to suggest its refutation.

Creditors may exact gold and silver or they may waive the right to require such money, and accept credit currency, or commodities, other than gold and silver, and the United States, as creditors, or in the exercise of their express power to lay and collect taxes, duties, imposts, and excises, may, if they see fit, accept the treasury notes or bank bills in such payments as subst.i.tutes for the const.i.tutional currency. Further discussion of the proposition is unnecessary, as it is plainly dest.i.tute of any merit whatever.

Resort was also had to treasury notes in the revulsion of 1837, and during the war with Mexico, and also in the great revulsion of 1857, but the new theory that congress could make treasury notes a legal tender was not even suggested, either by the president or by any member of congress.

Seventy years are included in this review, even if the computation is only carried back to the pa.s.sage of the act establishing the mint, and it is clear that there is no trace of any act, executive or legislative, within that period, which affords the slightest support to the new const.i.tutional theory that congress can by law const.i.tute paper emissions a tender in payment of debts. Even Washington, the father of our country, refused to accept paper money in payment of debts, contracted before the war of independence, and the proof is full to the point that Hamilton, as well as Jefferson and Madison, was opposed to paper emissions by the national authority.

Sufficient also is recorded in the reports of the decisions of this court to show that the court, from the organization of the judicial system to the day when the judgments in the cases before the court were announced, held opinions utterly opposed to such a construction of the const.i.tution as would authorize congress to make paper promises a legal tender as between debtor and creditor. Throughout that period the doctrine of the court has been, and still is, unless the opinion of the court just read const.i.tutes an exception, that the government of the United States, as ordained and established by the const.i.tution, is a government of enumerated powers; that all the powers not delegated to the United States by the const.i.tution, nor prohibited by it to the states, are reserved to the states respectively or to the people; that every power vested in the Federal government under the const.i.tution is in its nature sovereign, and that congress may pa.s.s all laws necessary and proper to carry the same into execution, or, in other words, that the power being sovereign includes, by force of the term, the requisite means, fairly applicable to the attainment of the contemplated end, which are not precluded by restrictions or exceptions expressed or necessarily implied, and not contrary to the essential ends of political society.

Definitions slightly different have been given by different jurists to the words "necessary and proper," employed in the clause of the const.i.tution conferring upon congress the power to pa.s.s laws for carrying the express grants of power into execution, but no one ever pretended that a construction or definition could be sustained that the general clause would authorize the employment of such means in the execution of one express grant as would practically nullify another or render another utterly nugatory. Circ.u.mstances made it necessary that Mr. Hamilton should examine that phrase at a very early period after the const.i.tution was adopted, and the definition he gave to it is as follows: "All the means requisite and fairly applicable to the attainment of the end of such power which are not precluded by restrictions and exceptions specified in the const.i.tution, and not contrary to the essential ends of political society." Twenty-five years later the question was examined by the supreme court and authoritatively settled, the chief justice giving the opinion. His words were: "Let the end be legitimate, let it be within the scope of the const.i.tution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited but consistent with the letter and spirit of the const.i.tution, are const.i.tutional."

Substantially the same definition was adopted by the present chief justice in the former case, in which he gave the opinion of the court, and there is nothing contained in the Federal reports giving the slightest sanction to any broader definition of those words. Take the definition given by Mr. Hamilton, which, perhaps, is the broadest, if there is any difference, and still it is obvious that it would give no countenance whatever to the theory that congress, in pa.s.sing a law to execute one express grant of the const.i.tution, could authorize means which would nullify another express grant, or render it nugatory for the attainment of the end which the framers of the const.i.tution intended it should accomplish.

Authority to coin money was vested in congress to provide a permanent national standard of value, everywhere the same, and subject to no variation except what congress shall make under the power to regulate the value thereof, and it is not possible to affirm, with any hope that the utterance will avail in the argument, that the power to coin money is not an express power, and if those premises are conceded it cannot be shown that congress can so expand any other express power by implication as to nullify or defeat the great purposes which the power to coin money and establish a standard of value was intended to accomplish.

Government notes, it is conceded, may be issued as a means of borrowing money, because the act of issuing the notes may be, and often is, a requisite means to execute the granted power, and being fairly applicable to the attainment of the end, the notes, as means, may be employed, as they are not precluded by any restrictions or exceptions, and are not repugnant to any other express grant contained in the const.i.tution. Light-houses, buoys, and beacons may be erected under the power to regulate commerce, but congress cannot authorize an officer of the government to take private property for such a purpose without just compensation, as the exercise of such a power would be repugnant to the fifth amendment. Power to lay and collect taxes is conferred upon congress, but the congress cannot tax the salaries of the state judges, as the exercise of such a power is incompatible with the admitted power of the states to create courts, appoint judges, and provide for their compensation.

Congress may also impose duties, imposts, and excises to pay the debts and provide for the common defence and general welfare, but the congress cannot lay any tax or duty on articles exported from any state, nor can congress give any preference by any regulation of commerce or revenue to the ports of one state over those of another, as the exercise of any such power is prohibited by the const.i.tution. Exclusive power is vested in congress to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Appropriations to execute those powers may be made by congress, but no appropriations of money to that use can be made for a longer term than two years, as an appropriation for a longer term is expressly prohibited by the same clause which confers the power to raise and support armies. By virtue of those grants of power congress may erect forts and magazines, may construct navy-yards and dock-yards, manufacture arms and munitions of war, and may establish depots and other needful buildings for their preservation, but the congress cannot take private property for that purpose without making compensation to the owner, as the const.i.tution provides that private property shall not be taken for public use without just compensation.

Legislative power under the const.i.tution can never be rightfully extended to the exercise of a power not granted nor to that which is prohibited, and it makes no difference whether the prohibition is express or implied, as an implied prohibition, when once ascertained, is as effectual to negative the right to legislate as one that is expressed; the rule being that congress, in pa.s.sing laws to carry the express powers granted into execution, cannot select any means as requisite for that purpose or as fairly applicable to the attainment of the end, which are precluded by restrictions or exceptions contained in the const.i.tution, or which are contrary to the essential ends of political society.

Concede these premises, and it follows that the acts of congress in question cannot be regarded as valid unless it can be held that the power to make paper emissions a legal tender in payment of debts can properly be implied from the power to coin money, and that such emissions, when enforced by such a provision, become the legal standard of value under the const.i.tution. Extended discussion of the first branch of the proposition would seem to be unnecessary, as the dissenting justices in the former case abandoned that point and frankly stated in the dissenting opinion delivered that they were not able to see in those clauses, "standing alone, a sufficient warrant for the exercise of this power." Through their organ on the occasion they referred to the power to declare war, to suppress insurrection, to raise and support armies, to provide and maintain a navy, to borrow money, to pay the debts of the Union, and to provide for the common defence and general welfare, as grants of power conferred in separate clauses of the const.i.tution.

Reference was then made in very appropriate terms to the exigencies of the treasury during that period and the conclusion reached, though expressed interrogatively, appears to be that the provision making the notes a legal tender was a necessary and proper one as conducing "towards the purpose of borrowing money, of paying debts, of raising armies, of suppressing insurrection," or, as expressed in another part of the same opinion, the provision was regarded as "necessary and proper to enable the government to borrow money to carry on the war."

Suggestions or intimations are made in one or more of the opinions given in the state courts that the power a.s.sumed by congress may be vindicated as properly implied from the power to coin money, but inasmuch as that a.s.sumption was not the ground of the dissent in the former case, and as the court is not referred to any case where a court affirming the validity of the acts of congress in question has ventured to rest their decision upon that theory, it does not appear to be necessary to protract the discussion upon that point.

Such notes are not declared in the acts of congress to be a standard of value, and if they were the provision would be as powerless to impart that quality to the notes as were the processes of the alchemist to convert chalk into gold, or the contrivances of the mechanic to organize a machine and give it perpetual motion. Gold and silver were adopted as the standard of value, even before civil governments were organized, and they have always been regarded as such to the present time, and it is safe to affirm that they will continue to be such by universal consent, in spite of legislative enactments and of judicial decisions. Treasury notes, or the notes in question, called by what name they may be, never performed that office, even for a day, and it may be added that neither legislative enactments nor judicial decisions can compel the commercial world to accept paper emissions of any kind as the standard of value by which all other values are to be measured. Nothing but money will in fact perform that office, and it is clear that neither legislative enactments nor judicial decisions can perform commercial impossibilities. Commodities undoubtedly may be exchanged as matter of barter, or the seller may accept paper promises instead of money, but it is nevertheless true, as stated by Mr. Huskisson, that money is not only the _common measure_ and _common representative_ of all other commodities, but also the common and universal equivalent. Whoever buys, gives, whoever sells, receives such a quant.i.ty of pure gold or silver as is equivalent to the article bought or sold; or if he gives or receives paper instead of money, he gives and receives that which is valuable only as it stipulates the payment of a given quant.i.ty of gold or silver.

"Most unquestionably," said Mr. Webster, "there is no legal tender, and there can be no legal tender, in this country, under the authority of this government, or any other, but gold and silver. * * This is a const.i.tutional principle, perfectly plain and of the very highest importance." He admitted that no such express prohibition was contained in the const.i.tution, and then proceeded to say: "As Congress has no power granted to it in this respect but to coin money and to regulate the value of foreign coins, _it clearly has no power to subst.i.tute paper_ or anything else for coin as a tender in payment of debts and in discharge of contracts," adding that "Congress has exercised the power fully in both its branches. It has coined money and still coins it, it has regulated the value of foreign coins and still regulates their value. The legal tender, therefore, THE CONSt.i.tUTIONAL STANDARD OF VALUE, IS ESTABLISHED AND CANNOT BE OVERTHROWN." Beyond peradventure he was of the opinion that gold and silver, at rates fixed by congress, const.i.tuted the legal standard of value, and that neither congress nor the states had authority to establish any other standard in its place.