Views equally decisive have been expressed by this court in a case where the remarks were pertinent to the question presented for decision.

Certain questions were certified here which arose in the circuit court in the trial of an indictment in which the defendant was charged with having brought into the United States from a foreign place, with intent to pa.s.s, utter, publish, and sell certain false, forged, and counterfeit coins, made, forged, and counterfeited in the resemblance and similitude of the coins struck at the mint. Doubts were raised at the trial whether congress had the power to pa.s.s the law on which the indictment was founded. Objection was made that the acts charged were only a fraud in traffic, and, as such, were punishable, if at all, under the state law.

Responsive to that suggestion the court say that the provisions of the section "appertain rather to the execution of an important trust invested by the const.i.tution, and to the obligation to fulfil that trust on the part of the government, namely, the trust and the duty of creating and maintaining _a uniform and pure metallic standard of value throughout the Union_; that the power of coining money and of regulating its value was delegated to congress by the const.i.tution for the very purpose of _creating and preserving the uniformity and purity of such a standard of value_, and on account of the impossibility which was foreseen of otherwise preventing the inequalities and the confusion necessarily incident to the different views of policy which in different communities would be brought to bear on this subject. The power to coin money being thus given to congress, founded on public necessity, it must carry with it the correlative power of protecting the creature and object of that power." Appropriate suggestions follow as to the right of the government to adopt measures to exclude counterfeits and prevent the true coin from being subst.i.tuted by others of no intrinsic value, and the justice delivering the opinion then proceeds to say, that congress "having emitted a circulating medium, _a standard of value indispensable for the purposes of the community_ and for the action of the government itself, the congress is accordingly authorized and bound in duty to prevent its debas.e.m.e.nt and expulsion and the destruction of the general confidence and convenience by the influx and subst.i.tution of a spurious coin in lieu of the const.i.tutional currency."

Equally decisive views were expressed by the court six years earlier, in the case of _Gwin_ v. _Breedlove_, in which the opinion of the court was delivered by the late Mr. Justice Catron, than whom no justice who ever sat in the court was more opposed to the expression of an opinion on a point not involved in the record.

No state shall coin money, emit bills of credit, or make anything but gold and silver a tender in payment of debts. These prohibitions, said Mr. Justice Washington, a.s.sociated with the powers granted to congress to coin money and regulate the value thereof and foreign coin, most obviously const.i.tute members of the same family, being upon the same subject and governed by the same policy. This policy, said the learned justice, was to provide and fix a uniform standard of value throughout the United States, by which the commercial and other dealings between the citizens thereof, or between them and foreigners, as well as the moneyed transactions of the government, should be regulated. Language so well chosen and so explicit cannot be misunderstood, and the views expressed by Mr. Justice Johnson in the same case are even more decisive. He said the prohibition in the const.i.tution to make anything but gold or silver coin a tender in payment of debts is _express and universal_. The framers of the const.i.tution regarded it as an evil to be repelled without modification, and that they have therefore left nothing to be inferred or deduced from construction on the subject.

Recorded as those opinions have been for forty-five years, and never questioned, they are certainly ent.i.tled to much weight, especially as the principles which are there laid down were subsequently affirmed in two cases by the unanimous opinion of this court.

Strong support to the view here taken is also derived from the case of _Craig_ v. _Missouri_, last cited, in which the opinion was given by the chief justice. Loan certificates issued by the state were the consideration of the note in suit in that case, and the defence was that the certificates were bills of credit, and that the consideration of the note was illegal. Responsive to that defence the plaintiff insisted that the certificates were not bills of credit, because they had not been made a legal tender, to which the court replied, that the emission of bills of credit and the enactment of tender laws were distinct operations, independent of each other; that both were forbidden by the const.i.tution; that the evils of paper money did not result solely from the quality of its being made a tender in payment of debts; that that quality might be the _most pernicious_ one, but that it was not an essential quality of bills of credit nor the only mischief resulting from such emissions.

Remarks of the chief justice in the case of _Sturges_ v. _Crowninshield_ may also be referred to as even more explicit and decisive to the same conclusion than anything embodied in the other cases. He first describes, in vivid colors, the general distress which followed the war in which our independence was established. Paper money, he said, was issued, worthless lands and other property of no use to the creditor were made a tender in payment of debts, and the time of payment stipulated in the contract was extended by law. Mischief to such an extent was done, and so much more was apprehended, that general distrust prevailed, and all confidence between man and man was destroyed. Special reference was made to those grievances by the chief justice, because it was insisted that the prohibition to pa.s.s laws impairing the obligation of contracts ought to be confined by the court to matters of that description, but the court was of a different opinion, and held that the convention intended to establish a great principle, that contracts should be inviolable, that the provision was intended "to prohibit the use of any means by which the same mischief might be produced." He admitted that that provision was not intended to prevent the issue of paper money, as that evil was remedied and the practice prohibited by the clause forbidding the states to "emit bills of credit," inserted in the const.i.tution expressly for that purpose, and he also admitted that the prohibition to emit bills of credit was not intended to restrain the states from enabling debtors to discharge their debts by the tender of property of no real value to the creditor, "because for that subject also particular provision is made" in the const.i.tution; but he added, "NOTHING BUT GOLD AND SILVER COIN CAN BE MADE A TENDER IN PAYMENT OF DEBTS."

Utterances of the kind are found throughout the reported decisions of this court, but there is not a sentence or word to be found within those volumes, from the organization of the court to the pa.s.sage of the acts of congress in question, to support the opposite theory.

Power, as before remarked, was vested in the congress under the confederation to borrow money and emit bills of credit, and history shows that the power to emit such bills had been exercised, before the convention which framed the const.i.tution a.s.sembled, to an amount exceeding $350,000,000. Still the draft of the const.i.tution, as reported, contained the words, "and to emit bills," appended to the clause authorizing congress to borrow money. When that clause was reached, says Mr. Martin, a motion was made to strike out the words, "to emit _bills of credit_;" and his account of what followed affords the most persuasive and convincing evidence that the convention, and nearly every member of it, intended to put an end to the exercise of such a power. Against the motion, he says, we urged that it would be improper to deprive the congress of that power; that it would be a novelty unprecedented to establish a government which should not have such authority; that it was impossible to look forward into futurity so far as to decide that events might not happen that would render the exercise of such a power absolutely necessary, &c. But a majority of the convention, he said, being wise beyond every event, and being willing to risk any political evil rather than admit the idea of a paper emission _in any possible case_, refused to trust the authority to a government to which they were lavishing the most unlimited powers of taxation, and to the mercy of which they were willing blindly to trust the liberty and property of the citizens of every state in the Union, _and "they erased that clause from the system_."

More forcible vindication of the action of the convention could hardly be made than is expressed in the language of the Federalist, and the authority of Judge Story warrants the statement that the language there employed is "justified by almost every contemporary writer," and is "attested in its truth by facts" beyond the influence of every attempt at contradiction. Having adverted to those facts, the commentator proceeds to say, "that the same reasons which show the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to subst.i.tute a paper medium instead of coin."

Emissions of the kind were not declared by the Continental congress to be a legal tender, but congress pa.s.sed a resolution declaring that they ought to be a tender in payment of all private and public debts, and that a refusal to receive the tender ought to be an extinguishment of the debt, and recommended the states to pa.s.s such laws. They even went further, and declared that whoever should refuse to receive the paper as gold or silver should be deemed an enemy to the public liberty; but our commentator says that these measures of violence and terror, so far from aiding the circulation of the paper, led on to still further depreciation. New emissions followed and new measures were adopted to give the paper credit by pledging the public faith for its redemption.

Effort followed effort in that direction, until the idea of redemption at par was abandoned. Forty for one was offered, and the states were required to report the bills under that regulation, but few of the old bills were ever reported, and of course few only of the contemplated new notes were issued, and the bills in a brief period ceased to circulate, and in the course of that year quietly died in the hands of their possessors.

Bills of credit were made a tender by the states, but all such, as well as those issued by the congress, were dead in the hands of their possessors before the convention a.s.sembled to frame the const.i.tution.

Intelligent and impartial belief in the theory that such men, so instructed, in framing a government for their posterity as well as for themselves, would deliberately vest such a power, either in congress or the states, as a part of their perpetual system, can never in my judgment be secured in the face of the recorded evidences to the contrary which the political and judicial history of our country affords. Such evidence, so persuasive and convincing as it is, must ultimately bring all to the conclusion that neither the congress nor the states can make anything but gold or silver coin a tender in payment of debts.

Exclusive power to coin money is certainly vested in congress, but "no amount of reasoning can show that executing a promissory note and ordering it to be taken in payment of public and private debts is a species of coining money."

Complete refutation of such theory is also found in the dissenting opinion in the former case, in which the justice who delivered the opinion states that he is not able to deduce the power to pa.s.s the laws in question from that clause of the const.i.tution, and in which he admits, without qualification, that the provision making such notes a legal tender does undoubtedly impair the "obligation of contracts made before its pa.s.sage." Extended argument, therefore, to show that the acts in question impair the obligation of contracts made before their pa.s.sage is unnecessary, but the admission stops short of the whole truth, as it leaves the implication to be drawn that the obligation of subsequent contracts is not impaired by such legislation. Contracts for the payment of money, whether made before or after the pa.s.sage of such a provision, are contracts, if the promise is expressed in dollars, to pay the specified amount in the money recognized and established by the const.i.tution as the standard of value, and any act of congress which in theory compels the creditor to accept paper emissions, instead of the money so recognized and established, impairs the obligation of such a contract, no matter whether the contract was made before or after the act compelling the creditor to accept such payment, as the const.i.tution in that respect is a part of the contract, and by its terms ent.i.tles the creditor to demand payment in the medium which the const.i.tution recognizes and establishes as the standard of value.

Evidently the word dollar, as employed in the const.i.tution, means the money recognized and established in the express power vested in congress to coin money, regulate the value thereof and of foreign coin, the framers of the const.i.tution having borrowed and adopted the word as used by the Continental congress in the ordinance of the 6th of July, 1785, and of the 8th August, 1786, in which it was enacted that the money unit of the United States should be "one dollar," and that the money of account should be dollars and fractions of dollars, as subsequently provided in the ordinance establishing a mint.

Repeated decisions of this court, of recent date, have established the rule that contracts to pay coined dollars can only be satisfied by the payment of such money, which is precisely equivalent to a decision that such notes as those described in the acts of congress in question are not the money recognized and established by the const.i.tution as the standard of value, as the money so recognized and established, if the contract is expressed in dollars, will satisfy any and every contract between party and party. Beyond all question the cases cited recognize "the fact accepted by all men throughout the world, that value is inherent in the precious metals; that gold and silver are in themselves values, and being such, and being in other respects best adapted to the purpose, are _the only proper measures of value_; that these values are determined by weight and purity, and that form and impress are simply certificates of value, worthy of absolute reliance only because of the known integrity and good faith of the government which" put them in circulation.

When the intent of the parties as to the medium of payment is clearly expressed in a contract, the court decide, in _Butler_ v. _Horwitz_, above cited, that damages for the breach of it, whether made before or since the enactment of these laws, may be properly a.s.sessed so as to give effect to that intent, and no doubt is entertained that that rule is correct. Parties may contract to accept payment in treasury notes, or specific articles, or in bank bills, and if they do so they are bound to accept the medium for which they contracted, provided the notes, specific articles, or bills are tendered on the day the payment under the contract becomes due, and it is clear that such a tender, if seasonable and sufficient in amount, is a good defence to the action.

Decided cases also carry the doctrine much further, and hold, even where the contract is payable in money and the promise is expressed in dollars, that a tender of bank bills is a good tender if the party to whom it was made placed his objections to receiving it wholly upon the ground that the amount was not sufficient.

Grant all that, and still it is clear that where the contract is for the payment of a certain sum of money, and the promise is expressed in dollars, or in coined dollars, the promisee, if he sees fit, may lawfully refuse to accept payment in any other medium than gold and silver, made a legal tender by act of congress pa.s.sed in pursuance of that provision of the const.i.tution which vests in congress the power to coin money, regulate the value thereof and of foreign coin.

Foreign coin of gold and silver may be made a legal tender, as the power to regulate the value thereof is vested in congress as well as the power to regulate the value of the coins fabricated and stamped at the mint.

Opposed, as the new theory is, by such a body of evidence, covering the whole period of our const.i.tutional history, all tending to the opposite conclusion, and unsupported as the theory is by a single historical fact, ent.i.tled to any weight, it would seem that the advocates of the theory ought to be able to give it a fixed domicile in the const.i.tution, or else be willing to abandon it as a theory without any solid const.i.tutional foundation. Vagrancy in that behalf, if conceded, is certainly a very strong argument at this day, that the power does not reside in the const.i.tution at all, as if the fact were otherwise, the period of eighty-five years which has elapsed since the const.i.tution was adopted is surely long enough to have enabled its advocates to discover its locality and to be able to point out its home to those whose researches have been less successful and whose conscientious convictions lead them to the conclusion that, as applied to the const.i.tution, it is a myth without a habitation or a name.

Unless the power to enact such a provision can be referred to some one or more of the express grants of power to congress, as the requisite means, or as necessary and proper for carrying such express power or powers into execution, it is usually conceded that the provision must be regarded as unconst.i.tutional, as it is not pretended that the const.i.tution contains any express grant of power authorizing such legislation. Powers not granted cannot be exercised by congress, and certainly all must agree that no powers are granted except what are expressed or such as are fairly applicable as requisite means to attain the end of a power which is granted, or, in other words, are necessary and proper to carry those which are expressed into execution.

Pressed by these irrepealable rules of construction, as applied to the const.i.tution, those who maintain the affirmative of the question under discussion are forced to submit a specification. Courts, in one or more cases, have intimated that the power in question may be implied from the express power to coin money, but inasmuch as no decided case is referred to where the judgment of the court rests upon that ground, the suggestion will be dismissed without further consideration, as one involving a proposition too lat.i.tudinous to require refutation. Most of the cases referred to attempt to deduce the power to make such paper emissions a legal tender from the express power to borrow money, or from the power to declare war, or from the two combined, as in the dissenting opinion in the case which is now overruled.

Authority, it is conceded, exists in congress to pa.s.s laws providing for the issue of treasury notes, based on the national credit, as necessary and proper means for fulfilling the end of the express power to borrow money, nor can it be doubted at this day, that such notes, when issued by the proper authority, may lawfully circulate as credit currency, and that they may, in that conventional character, be lawfully employed, if the act authorizing their issue so provides, to pay duties, taxes, and all the public exactions required to be paid into the national treasury.

Public creditors may also be paid in such currency by their own consent, and they may be used in all other cases, where the payment in such notes comports with the terms of the contract. Established usage founded upon the practice of the government, often repeated, has sanctioned these rules, until it may now be said that they are not open to controversy, but the question in the cases before the court is whether the congress may declare such notes to be lawful money, make them a legal tender, and impart to such a currency the quality of being a standard of value, and compel creditors to accept the payment of their debts in such a currency as the equivalent of the money recognized and established by the const.i.tution as the standard of value by which the value of all other commodities is to be measured. Financial measures, of various kinds, for borrowing money to supply the wants of the treasury, beyond the receipts from taxation and the sales of the public lands, have been adopted by the government since the United States became an independent nation. Subscriptions for a loan of twelve millions of dollars were, on the 4th of August, 1790, directed to be opened at the treasury, to be made payable in certificates issued for the debt according to their specie value. Measures of the kind were repeated in rapid succession for several years, and laws providing for loans in one form or another appear to have been the preferred mode of borrowing money, until the 30th of June, 1812, when the first act was pa.s.sed "to authorize the issue of treasury notes".

Loans had been previously authorized in repeated instances, as will be seen by the following references, to which many more might be added.

Earnest opposition was made to the pa.s.sage of the first act of congress authorizing the issue of treasury notes, but the measure prevailed, and it may be remarked that the vote on the occasion was ever after regarded as having settled the question as to the const.i.tutionality of such an act. Five millions of dollars were directed to be issued by that act, and the secretary of the treasury, with the approbation of the president, was empowered to cause such portion of the notes as he might deem expedient to be issued at par "to such public creditors _or other persons as may choose to receive such notes in payment_," it never having occurred to any one that even a public creditor could be compelled to receive such notes in payment except by his own consent.

Twenty other issues of such notes were authorized by congress in the course of the fifty years next after the pa.s.sage of that act and before the pa.s.sage of the acts making such notes a legal tender, and every one of such prior acts, being twenty in all, contains either in express words or by necessary implication, an equally decisive negation to the new const.i.tutional theory that congress can make paper emissions either a standard of value or a legal tender. Superadded to the conceded fact that the const.i.tution contains no express words to support such a theory, this long and unbroken usage, that treasury notes shall not be const.i.tuted a standard of value nor be made a tender in payment of debts, is ent.i.tled to great weight, and when taken in connection with the persuasive and convincing evidence, derived from the published proceedings of the convention, that the framers of the const.i.tution never intended to grant any such power, and from the recorded sentiments of the great men whose arguments in favor of the reported draft procured its ratification, and supported as that view is by the repeated decisions of this court, and by the infallible rule of interpretation that the language of one express power shall not be so expanded as to nullify the force and effect of another express power in the same instrument, it seems to me that it ought to be deemed final and conclusive that congress cannot const.i.tute such notes or any other paper emissions a const.i.tutional standard of value, or make them a legal tender in payment of debts--especially as it covers the period of two foreign wars, the creation of the second national bank, and the greatest financial revulsions through which our country has ever pa.s.sed.

Guided by the views expressed in the dissenting opinion in the former case, it must be taken for granted that the legal tender feature in the acts in question was placed emphatically, by those who enacted the provision, upon the necessity of the measure to the further borrowing of money and maintaining the army and navy, and such appears to be the princ.i.p.al ground a.s.sumed in the present opinion of the court. Enough also appears in some of the interrogative sentences of the dissenting opinion to show that the learned justice who delivered it intended to place the dissent very largely upon the same ground.

Nothing need be added, it would seem, to show that the power to make such notes a standard of value and a legal tender cannot be derived from the power to borrow money, without so expanding it by implication as to nullify the power to coin money and regulate its value, nor without extending the scope and operation of the power to borrow money to an object never contemplated by the framers of the const.i.tution; and if so, then it only remains to inquire whether it may be implied from the power to declare war, to raise and support armies, or to provide and maintain a navy, or "to enable the government to borrow money to carry on the war," as the phrase is in the dissenting opinion in the former case.

Money is undoubtedly the sinews of war, but the power to raise money to carry on war, under the const.i.tution, is not an implied power, and whoever adopts that theory commits a great const.i.tutional error.

Congress may declare war and congress may appropriate all moneys in the treasury to carry on the war, or congress may coin money for that purpose, or borrow money to any amount for the same purpose, or congress may lay and collect taxes, duties, imposts, and excises to replenish the treasury, or may dispose of the public lands or other property belonging to the United States, and may in fact, by the exercise of the express powers of the const.i.tution, command the whole wealth and substance of the people to sustain the public credit and prosecute the war to a successful termination. Two foreign wars were successfully conducted by means derived from those sources, and it is not doubted that those express powers will always enable congress to maintain the national credit and defray the public expenses in every emergency which may arise, even though the national independence should be a.s.sailed by the combined forces of all the rest of the civilized world. All remarks, therefore, in the nature of entreaty or appeal, in favor of an implied power to fulfil the great purpose of national defence or to raise money to prosecute a war, are a mere waste of words, as the most powerful and comprehensive means to accomplish the purpose for which the appeal is made are found in the express powers vested in congress to lay and collect taxes, duties, imposts, and excises without limitation as to amount, to borrow money also without limitation, and to coin money, dispose of the public lands, and to appropriate all moneys in the public treasury to that purpose.

Weighed in the light of these suggestions, as the question under discussion should be, it is plain, not only that the exercise of such an implied power is unnecessary to supply the sinews of war, but that the framers of the const.i.tution never intended to trust a matter of such great and vital importance as that of raising means for the national defence or for the prosecution of a war to any implication whatever, as they had learned from bitter experience that the great weakness of the confederation during the war for independence consisted in the want of such express powers. Influenced by those considerations the framers of the const.i.tution not only authorized congress to lay and collect taxes, duties, imposts, and excises to any and every extent, but also to coin money and to borrow money without any limitation as to amount, showing that the argument that to deny the implied power to make paper emissions a legal tender will be to cripple the government, is a mere chimera, without any solid const.i.tutional foundation for its support.

Comprehensive, however, as the power of Federal taxation is, being without limitation as to amount, still there are some restrictions as to the manner of its exercise, and some exceptions as to the objects to which it may be applied. Bills for raising revenue must originate in the house of representatives; duties, imposts, and excises must be uniform throughout the United States; direct taxes must be apportioned according to numbers; regulations of commerce and revenue shall not give any preference to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another; nor shall any tax or duty be laid on articles exported from any state.

Preparation for war may be made in peace, but neither the necessity for such preparation nor the actual existence of war can have the effect to abrogate or supersede those restrictions, or to empower congress to tax the articles excepted from taxation by the const.i.tution. Implied exceptions also exist, limiting the power of federal taxation as well as that of the states, and when an exception of that character is ascertained the objects falling within it are as effectually shielded from taxation as those falling within an express exception, for the plain reason that the "government of the United States is acknowledged by all to be one of enumerated powers," from which it necessarily follows that powers not granted cannot be exercised.

Moneys may be raised by taxes, duties, imposts, and excises to carry on war as well as to pay the public debt or to provide for the common defence and general welfare, but no appropriation of money to that use can be made for a period longer than two years, nor can congress, in exercising the power to levy taxes for that purpose, or any other, abrogate or supersede those restrictions, exceptions, and limitations, as they are a part of the const.i.tution, and as such are as obligatory in war as in peace, as any other rule would subvert, in time of war, every restriction, exception, limitation, and prohibition in the const.i.tution, and invest congress with unlimited power, even surpa.s.sing that possessed by the British parliament.

Congress may also borrow money to carry on war, without limitation, and in exercising that express power may issue treasury notes as the requisite means for carrying the express power into execution, but congress cannot const.i.tute such notes a standard of value nor make them a legal tender, neither in time of war nor in time of peace, for at least two reasons, either of which is conclusive that the exercise of such a power is not warranted by the const.i.tution: (1.) Because the published proceedings of the convention which adopted the const.i.tution, and of the state conventions which ratified it, show that those who partic.i.p.ated in those deliberations never intended to confer any such power. (2.) Because such a power, if admitted to exist, would nullify the effect and operation of the express power to coin money, regulate the value thereof and of foreign coin; as it would subst.i.tute a paper medium in the place of gold and silver coin, which in itself, as compared with coin, possesses no value, is not money, either in the const.i.tutional or commercial sense, but only a promise to pay money, is never worth par, and often much less, even as domestic exchange, and is always fluctuating and never acknowledged either as a medium of exchange or a standard of value in any foreign market known to American commerce.

Power to issue such notes, it is conceded, exists without limitation, but the question is whether the framers of the const.i.tution intended that congress, in the exercise of that power or the power to borrow money, whether in peace or war, should be empowered to const.i.tute paper emissions, of any kind, a standard of value, and make the same a legal tender in payment of debts. Mere convenience, or even a financial necessity in a single case, cannot be the test, but the question is, What did the framers of the const.i.tution intend at the time the instrument was adopted and ratified?

Const.i.tutional powers, of the kind last mentioned--that is, the power to ordain a standard of value and to provide a circulating medium for a legal tender--are subject to no mutations of any kind. They are the same in peace and in war. What the grants of power meant when the const.i.tution was adopted and ratified they mean still, and their meaning can never be changed except as described in the fifth article providing for amendments, as the const.i.tution "is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all cla.s.ses of men and under all circ.u.mstances."

Delegated power ought never to be enlarged beyond the fair scope of its terms, and that rule is emphatically applicable in the construction of the const.i.tution. Restrictions may at times be inconvenient, or even embarra.s.sing, but the power to remove the difficulty by amendment is vested in the people, and if they do not exercise it, the presumption is that the inconvenience is a less evil than the mischief to be apprehended if the restriction should be removed and the power extended, or that the existing inconvenience is the least of the two evils; and it should never be forgotten that the government ordained and established by the const.i.tution is a government "of limited and enumerated powers,"

and that to depart from the true import and meaning of those powers is to establish a new const.i.tution or to do for the people what they have not chosen to do for themselves, and to usurp the functions of a legislator and desert those of an expounder of the law. Arguments drawn from impolicy or inconvenience, says Judge Story, ought here to be of no weight, as "the only sound principle is to declare _ita lex scripta est_, to follow and to obey."

For these reasons I am of the opinion that the judgment in each of the cases before the court should be reversed.

CHAPTER IV.

DISSENTING OPINION OF JUSTICE FIELD.

Whilst I agree with the chief justice in the views expressed in his opinion in these cases, the great importance which I attach to the question of legal tender induces me to present some further considerations on the subject.

Nothing has been heard from counsel in these cases, and nothing from the present majority of the court, which has created a doubt in my mind of the correctness of the judgment rendered in the case of _Hepburn_ v.

_Griswold_, or of the conclusions expressed in the opinion of the majority of the court as then const.i.tuted. That judgment was reached only after repeated arguments were heard from able and eminent counsel, and after every point raised on either side had been the subject of extended deliberation.

The questions presented in that case were also involved in several other cases, and had been elaborately argued in them. It is not extravagant to say that no case has ever been decided by this court since its organization, in which the questions presented were more fully argued or more maturely considered. It was hoped that a judgment thus reached would not be lightly disturbed. It was hoped that it had settled forever, that under a const.i.tution ordained, among other things, "to establish justice," legislation giving to one person the right to discharge his obligations to another by nominal instead of actual fulfillment, could never be justified.

I shall not comment upon the causes which have led to a reversal of that judgment. They are patent to every one. I will simply observe that the chief justice and the a.s.sociate justices, who const.i.tuted the majority of the court when that judgment was rendered, still adhere to their former convictions. To them the reasons for the original decision are as cogent and convincing now as they were when that decision was p.r.o.nounced; and to them its justice, as applied to past contracts, is as clear to-day as it was then.

In the cases now before us the questions stated, by order of the court, for the argument of counsel, do not present with entire accuracy the questions actually argued and decided. As stated, the questions are: 1st. Is the act of congress known as the legal tender act const.i.tutional as to contracts made before its pa.s.sage? 2d. Is it valid as applicable to transactions since its pa.s.sage?