The New York herald., 1870-02-08

csrtain and remote, great depreciation win take
place. II. ON the other hand, the quantity - only
adequate to demands OF business, ana commence
In. early redemption Is strong, the notes notes,
| will circulate freely whether made legal
some increase a Of avaaoy derived from making
| these notes q legal tender under new contracts,
IL by no means follows that any apprecanle s ~ sn
ceiye them IN satisfaction OF pre-existin2 uepts.
And there IS abundant evidence taat - Wnatsver s
diyduals, or to tho government, Is far more than
ontweighed BY the losses q property the aeraage,
values and the increase OF prices TO the people ana
the government, and the long train or evils walcn
IL Is true that these evils are not to De attributed
altogether to making It legal tender; put thls III.
ond nsotrasts their contnna1ce We are Unable
to persuade ourselves that an expedens 0i TINS SORT
10 an appropriate and plainly adopted means tor
the OF the power TO declare and carry on
war. H adds nothing 70 the utility OF the notes II
cannot be upheld as means 10 the END in further
OF which the notes are issued; can It, In our
Judgment be applied as such II, while facilitating
in some degree, the circulation OF the notes, 1t de-
bases and Injuries the circulation OF the currency In
Its proper use 10 much greater degree. And these
considerations seem to US equally applicable 60 the
power to regulate commerce and tO borrow money.
Both powers necessarily involve the use OF money
| BY the people and by the government, but neither,
Sa Wi to m the power
| or making circulating notes legal tender IN pay
ment OF ,preexistng ,deDts But there Is another
view which seems to us decisive 10 whatever
| express power the implied power IN question may
be referred In the rule stated by Chief Justice Mar.
sreaily caiculated are quaiined by Tie limitation
that the means must be not prohibited by, hut con-
sstent wtL the letter and spirit Of The constitution
Nothing so prohibited or inconsistent can be re-
garded as appropriate or plainly adapted, or really
Let us inquire then, 1rsl whether making bills OF
credit legal tender to the extent indicated IS con-
sistent with the spirit OF the constitution. Among
the great cardinal purposes OF that instrument no
one Is conspicuous more venerable than the
| establishment OF justice And what was intended
Of the people who ordained it is happily
| not matter OF disputatlon. IL Is not
lett TO Inference conjecture especially In Its rela
tons to contracts. wnen the constitution was un-
dergoing discussion In the Convention the Congress
OF tue Confederation was engaged IN tne consdera-
ton OF The ordinance for the government OF the
territory northwest OF the Ohio the only territory
subject az that time to ITS regulation and control
BY this ordinance certain fundamental articles OF
| compact were established between the original
States ana the people and States OF the territory.
for the purpose, 10 use It's own language, "of ex-
tending the fundamental principles or civil and re-
llgious hoerty, whereon these republicsthe States
| constitutions erected.' Among these funda-
mental principles was ths:-"And in the just preser-
yaSn q rights and NAP properly snt under sar
| to be made have force In the said
territory that shall in any manner whatever inter-
Iere Wlh affect private contracts or engagements
bona Nde and without fraud, previously fOrmed.n
| The same principle found more condensed expires
sion In that most valuable provision OF the copstitu
ton OF the United states ever recognized ei-
clent safeguard against intrigue, That no state shall
!
" Is true that this pr0nlblilon u not appiied Ia
terms TO the government OF the United States Con-
gress has express power 10 enact Dankrupe laws,
OF any other express power which incidentally only
lmpalrs the Obligation OF contract can be neld 10
unconstitutional Tor that reason but we think 1t
clear that those who framed and those who adopted
| the constitution intended that the spirit OF this
prohibition should peryade the entire body OF e2is.
iatlon and thar the justice which the constitution
was ordained TO establish was not thought by them
TO be compatible with legislation OF an opposite ten
i
| not made IN pursuance OF an express power which
obligation OF contracts, u inconsistent with the
| spirit Of the constitution.
| Another provision found IN the fifth amendment
must be considered In connection. We refer TO
that which ordans "that private property shall not
be taken Tor puolic use without compensation"
This provision is kindred in spirit to that which
forbIds legislation impairing the obligation
OF contracts; but, unlike that, it Is ad-
government. /, does not in terms prohibit legsla-
ton which appropriates the private property OF one
class OF clens TO Inc use Oh anotner M Class; Des
| without compensation It is difficult to understand
how 1t can be 80 taken for the beneht OF part with
out violating the spirit OF the prohibition But there
| is another provision in the same amendment which,
In our Judgment, cannot have It's full and intended
ieglsatlon which We have 6een considering. 1t is
which declares that no person shall be deprived
Of life. liberty property without due process Of law
| il is not doubted that all the provisions oil this
| amendment operate directly In limitation and re-
strant OF the legislative poWeIs C Sonierfsd w tas
| which compes all those VINO hold contracts for the
payment OF gold or silver money to accept in pay
menL currency OF inferior value deprycS such per-
OF properly without due process Of law. 1t Is
quite clear that whatever may be the operation of
such act, due process OF law makes no part OF IT,
Does it deprive ANY person or prooersys A very
| large proportion OF the property OF civilized men
i exists IN the form Of Contracts These contracts
| almost invariaoly stipulate for the payment Of
| money, ana we have already seen That contracts III
ne United states prior to snS act under
pay the sums specified IN gold and silver CON- and it
IS beyond douot That the holders OF these contracts
were and fully entitled to the protection OF
ihs constitutional provision as the holders or any
| other description or property. But 1t may be
said that the holders OF no description OF property
are protected by 1t from legislation which incden-
tally only impars It's value; and may be urged in
Illustration that the holders OF stock turnpike
| bridge or q manufacturing corporation an In
| surance company or bank cannot by authorizing
| similar works or corporations reduce its price IN
the market; but oil THIS does not appear to meet the
In the cases mentioned the injury is purely con-
tingent and Incidental. In the case we are
sidarng 1t direct and Inevitable. Ii In the cases
mentioned the holder OF tho STOCK was required to
TO offer half lis value for 1t the analogy would be
more obvious. No one probably, could be found to
ha an Ses eaerog scrsa tae
In satisfaction OF contract to convey
hundred would not come within the prohibition
ourselves unable to perceive any solid distinction
between such an act and an act compelling all citl-
zens to accept in satisfaction OF all contracts for
money half or three-quarters or any other proper
less than the whole Of the value actually due
according to their terms. 1t LIS dificult to conceive
what act would take private property without pro-
cess OF law II such acs would not We are obliged
TO conclude that an act making mere promises to
pay dollars legal tender In payment OF debts pre-
vlously contracted, Is not means appropriate
plainly adapted really calculated" to carry into
effect any express power vested In Congress-that
such an act is inconsistent with the spirit
OF the constitution, and that it Is prohibited
by the constitution. It Is not surprising that amid
the tumult Of the late civil war and under the In
nuence OF apprehensons Tor the safety OF the repub
lic almost universal, different views never before
entertained by American statesmen or jurisrs, were
adopted by Eiany. The time was not favorable to
coneiderate rejection upon the constitutional limits
OF LEGISLATION or executive authority. power was
assumed from patriotic motives the assumption
found ready Justification In patriotic hearts. Many
who doubted yielded their doubts; many who did
not doubt were silent; some who were strongly
averse to making government notes legal tender
iclt themselves constrained to acuuiesce IN the