The sun., 1870-02-08

0ecInfcI n
eluded nothing the question ofleeai {onders IN,
deed, we are not that 1t has ever oeen claimed
that the power to issue bills or notes has any iden
tty with the power TO make them legal tepder on
the contrary the whole hisfory OF tho country re-
iutes that notion. Tho States. rave ALWAYS been
held to possess the power to autlorizc and regulate
the issue OF bills for SPECULATION by banks or ind
viduals subject as las been lately determined, 10
the control OF Congress, for the purpose oi .sta2
shing aud securing national currr ncy, ana ytt I've
STATES ARB EXPRESSLY PRouiBirgp
By the Constitution from making ANYTHING but gold
and silver coin legal tender THIS seems dee.iye
tle point that tho power to Issue notes, uni t,e
ppwer % make them Legal tender arc MT oon INC
necton WITH each other. But 1t has been mninlhin
ed IN argument that the power TO make United
States notes eph tender In payu ent of ali debts
il means appropriately aud riainly adapted TO the
execution Of the power to cIry war, oi the pow
CT to regulate commerce, and Of the power TO oor-
row money. II II II, and u moi prohibited nor in
consistent with the letter or spiri Of the Consttu-
ton then the act which makes them such lrssl ten.
first inquire whether u Il an appropriate az plainly
sdapted means Tor carrying ON war. The snirmatve
ar ument may be thus stated; Congress has power
10 declare andi
PROVIDE ron CARRYING on WAR
Congress has also power to emit bills Of credit or
circulating notes, receivable for Government ones,
and payable, go Ear at least as parties arc Wiling 70
receive them, in discharge Of Goyernm cut obllga-
tions IL will facilitate Of such notes In dis
bursements to make them legal tender IN pay.
rnent OF existing dcbts; therefore Congress may
make such notes Legal tender. IL IL difficult TO say
TO what express power the authority TO make notes
n ess sonrssa p NOT be yupsd rs upon
tie principles Of this Argument. IL there anV power
Which docs no, involve tie usc oi money nnd
and bills Of credit as money In tho execution
Of any poveri The power 70 establish Post Onees
and pos roads. for example, involves the collection
and disbursements OF u large revenue. Is not ,hg
power to make notes legal tender as clearly lnci-
dental to this power as u the war powerf Ine an
tuL Tie argument therefore seems TO prove too
much. IL carries tie doctrine of implied powers
very far bcy ond any extent hitherto gwen 20 IT, II
asserts that Whatever Ia any degree promotes 1n
end within the scope OF general power, whether w.
the correct sense of the word appropriate" OF no..
may be done In tue
EXERCISE or An IMPLIED rowEn.
Can this proposition be maiutaucdi Il IA said
that this l. not question for the Court deciding
case, but ior CONGRESS exercising uIc power. But
the decisive answer to bs Is tnat the admission o
legislative power to determine finally what powers
lave tie dctcrbed relation as means TO the ex,.u.
urcise, absolutely and without LIABILITY TO question in
cases involving private rights the powers thus deter
mined TO have that relation would completely change
TIE nature OF American government. IL would cor.
vert the government, which the people ordained ~
government Of limited powers, into government
II unlimited powers; II would oblterate every cri-
teI1on which this court, speaking thToui n, y,ner
ated Chief Justice In tue case srad' :. .tstdb
lshod for the determination OF tn ques .ethtr
legislative acts are constitutional OF uncor al.
Undoubtedly among means sTpiopriat -iniy
triced choice but there can be n imp et power
to use means not within this DESCRIPTION.
Now, then, lee It be considered
wnAr mas ACTUALLY BEEN DONE
In the provision OF the national currency, In July
nud August 1871, and February. ls69 tle issue OF
innnd was authorized. Qs u :. Statutes, $50. 3l3,
SSs) They were made recc vuble In payments, but
not declared legal tender until March, 1864.
"a U. s. Statutes, $40, when the amount In eircu
latlon had been greatly redneed " oc,pt o. cancel
TO.O the issue Of -four hurdred and dity millions
United States notes PAYABLE, not on demand but, in
eject at the convenience Of the Government, was
authorised, subject to certain restrictions. A. 10
hty millions, these notes were made receivable for
the bonds of the nat onal oans for al debts due 70
and interest the puplic debt, ana VIC also de
clured legal tender. In March, lsy3 us United
States Statutes, III tie issue OF notes for paris OF
dollar Was auihorzed TO an amount Got ex-
ceeding ftty millions of dollars. These notes vera
able under regulations 10 be prescribed by thu Sec.
retafy OF te Treasury. In February, 1868 ll2 u. :.
stltutcs C5al the Issue Of three hundred millions
iolzrs 10 notes Of National Banking Associations
was authorized These notes were made recciy able
TO tue same extent rs United States notes, and pr ..
VISION was made to secure their redemption ; but
they wcr, hot naHe legal tender. Thcse several
descriptions OF notes have since constituted, under
the various acts Of Cougross
TIE COMMON CURRENCY oP ruB UNITED srArrs
Tho noiss whic1 were not declared legal tender
have circulated with t.ese which we're dec ared,
without uniayordblc determination. IL may be
added. as psrt Of tie history, that other issues
aud made q legal tender except IN redemption
bank notcs for nre amounts, exclusive of interest.
such Merr the one ard two years Eve per cent
notes. aud the three wears compound interest notes.
~ u. =. statutes. 2ls, 2iJ)
No one Questions the general oOnstitutionslity, y,
and not very many perhaps, tIe general txpedic noy
Of ne legislation 10y ~hic note curr ncy has been
authorized IN receuI years; Thc doubt Is as to the
power To declare particular cass Of these notes TO
be legal tender IN payment OF preeIisting debts
The only ground HDou which TINS power Is asserted
is nos that the n.ue Of notes was au aopropn.
ate and plsiuly adapted means for carving on
the war, Tor that Is admitted. but the making OF
them legal tender to tie extent msnt oued
was such means. Now, We have that OF aII
the notes issued those no, deelred legal tender N
all constituted very large proportion, and tbst they
circulated freely and without discounts. IL may be
said that tnen equality circulation and credit was
due to the provisions mnde BY Law tot the redenp
uOn OF this paper legal lender notes, but this pro
vision, 1t at all useful IN this respect was o trldng
| Importance compared WITH that which msie tnem
| receivable for GovtrnmenL dues.
And tie history OF the legislation under considcra.
uOn IL, that II was upon ihe quality OF receiyabiiy
and not upon the quality Of legal tender that reliance
VI circulation wac originally placed. THESE iacs
certainly not without weight evidence that all
the useful purposes Of tne notes would have been
fully answered, without making them legal tender
for pre- existing debts. Il is doniei indeed, by ,mi-
nent wrltsrs that the quality OF legal tender adds
anything At all to the credit or usciu.ness OF Gov
trnmrnt notes they insist, on the cohtroTy, that
inpairs Dutn However this may be- II must be re.
mCmbered that II is as means TO ail end 70 be oil.
tlined b the acNOn OF tie Government That n Z
implied power OF making notes legal tender la al
payments IL claimed under the Constitution.
III II be admitted iht some increase OF aVAllabily
II derived from making tn' notes q legal ttudrr
under new contracts, II by no means iolows that
any apprccable advantage Is gained by compelling
creditors to receive than in
SUBTRACTION or PRE-EXIsrISG DEpTs
And there Is abundant evidence that whatever
hcnont ~ possible from taat compulsion To some In
diyiduals, or 10 phe government, IL far more thar
| OutweIghed By the losses OF property, tht
| arrangement OF bnsinCss, tho nuetuation ol
| currency aud values aud the incTeas,
| OF prices to the people and the Govern
| ment aud tie long tram OF evils which How
IRON the use of an irredcemable paper MONEY! II !,
true that these evils not 10 be attributed alto
grllcT to maAing II legal tender: but this asc,
| THESE evils, ~ ceTtNlny NIdens their extent an,
protracts their continuance. We are unable TO per
suaie ourselves that an e1pedlent Of tins Is
appl Oprate aud plainly aCopted means for the exc
| cuuou OF the power 10 declare aud carry on war I
II adds nothing to the utility of the hotcs II cannO
| be- uphsd as meens 10 the end, Ia furtherlnc 90
which ,ho notes issued nor can H. In our Jud.
| ment, be upheld ns such, II. Mhe facilitating, u
some degree the circulation Of the notes, IL deba,e
and njur;s the currency IN ts proper use 10 ailGel
| grrater degree.
Aud these considerations seem TO us equally ap
| plcable 10 the
| POWER TO REGULATE COMMERCE. AND TO roaRoV
| MONEY.
| Bo.h powers necessarily Involve the use OF none,
| by tie p'Ople and by the G"NernmCnt but neither