The Bedford gazette. [volume] (Bedford, Pa.) 1805-current, 1867-08-30
Jhe gedford Gazette.
BORIE VS.. TR0TT.
Legal Tender Notes and their COnSfitu-
tiOnality.
OPINION OF JUDGE SHARSWOOD.

In January, 1864, the District Court
for the City and County of Philadelphia
had before it two cases in which the
cOnstitutiOnality of the act of Congress
of February %, 1862, making United
States notes a legal tender, was invOlv-
ed. In one of the cases the party had
offered legal tender notes in payment of
mortgage. and the money was refuS-
ed, and the party cited into court.
On Saturday, February 20, 1864, Judges
Hare and Stroud delivered the majority
opinion of the Court, affirming that the
tender of the United States notes was
legal, inasmuch as Congress, under the
Constitution, had the authority to pass
the act of February %, 1862. Judge
ion in which he held that Congress had
no power under the Constitution to
make notes legal tender in payments
of debts.
The following is Judge SharSwood's
opinion in eXtensO:
Ifany point may be considered as well
settled it is, that the Constitution Ofthe
United States is a special grant or dele
CATION of limited powers to the Federal
government. "It has been truly said,"
observes G.. J. Marshall in the United
States VS.. Fisher = Cranch, 212, ''that
under Constitution comforting specific
powers, the power cOntended for must
be granted or it cannot be exercised"
The same thing has been affirmed by
Mr.. Justice Storyin Martin VS.. Hunters
Lessee, Il Wheat, 326.) "The govern
ment of the United States can claim no
powers which are not granted to it by
tha CONSTITUTIONS n II 4 H. nOunrS aptnallU
granted, must be such as are expressly
given or given by necessary implica
tion." And not to multiply citations
on so clear principle-again by G. j.
Marshall in Mccullough VS.. the State of
Maryland, (4 Wheat, 405.) "This gov
ernment is acknowledged by all to be
one of enumerated powers. The princi-
pie that it can exercise only the powers
granted to it, would seem too apparent
to have required to be enforced by all
those arguments, which its enlightened
friends, while it was depending before
the people, found it necessary to urge.
That principle is nOlC WliUerSdtLy dd-
nlitted."
1t follows that to sustain the cOnStitu-
tiOnality Ofan act Of Congress deter
mine thatitiS laW-an authority for 1T
must be affirmatively shown. That au-
thority must exist in the Constitution
express words if the act must appear to
be necessary and proper for carrying
into execution some power or powers
vested in Congress, in the government
of the United States, or in some de-
partment or office thereof.
BY this rule we are now to decide,
whether that clause of the act of Con-
gress approved February %, 1862, enti-
tied can act to authorize the issue OF
United States notes and for the redemp-
ton or funding thereof, and for funding
the floating debt of the United States"
which provides that the notes issued in
pursuance of that act "Shall be laWfui
money, and legal tender in payment
for all debts public and private"-iS Orio
not law Of the land.
The counsel of the defendant-recOg-
nizing that on him rested the burden OF
maintaining the affirmative of this is
sue claimed that the provision referr-
ed to was an exercise of authority vest
ed in Congress under one or other OF
the following clauses of the enumera-
ton in Section of Article /:
PARAGRAPH ITO borrow money
on the credit of the United States /:
Ak. 1O ltldllC N1Oi'
foreign nations, and among the several
States, and wi, h the Indian tribes:
PAR. 5.-To coin money, regulate the
value thereof and of foreign coin, and
fix the standard of weights and meas
ureS;
PAR. 18.-To make all laws, which
shall be necessary and proper for car
rying into execution the foregoing
powers, and all other powers vested by
the Constitution in the government OF
the United States or in any department
or Office thereof.
L propose to examine these clauses
with such other parts of the Constitu-
tion as have been supposed in the course
of the argument to illustrate them. /
feel some degree of confidence, not only
from the Well-known ability, learning
and research ofthe counsel for the de
fendant, but from my Investigations,
that if the act of Congress in question
cannot be sustained on either of these
clauses, it cannot be sustained at all.
will begin with the last paragraph
of the enumeration, because its proper
construction has an important bearing
on the others PAR. Is. ITO make all
laws which shall be necessary and prop
er for carrying into execution the fore
going powers" / will not here revert
to political and cOntrOverted grounds
nor to the arguments, by which in the
Federalist, No. A, and elsewhere, the