The New York herald., 1870-02-08

which this court Ii called upon TO CONSIDER ID
whether the authority to make the notes
of the United States lawful tender In payment OF
debts Is to DO found IN Congress- under either OF
these classes or legislative power. As one OF tne
elements OF this question, and IN order 10 hesare
any idea tnat the exercise OF sucn power would /
may be az well to say at the outset ynat this Is among
tho subjects OF legislation forbidden to the states Dy
me constitution Among the unequlvocal atteraacss
OF that instrument on this subject OF lawful lenders
Is that which declares that no State shall COIN
money, emit bills OF credit or make anything put
removing the whole matter from the dominion Of
sIate legislation No s9ch prohibition Is ina
ouf ser. OF we naSs eaay
said, matters expressly forbidden 70 CONGRESS;
but neither this OF legal tender nor the power 70
Congress Is among them, though 1t must DC
obvious that In prohibiting this legal tender power
have been directed 70 the propriety OF limitation OF
the power OF Congress. On the contrary, Congress
expressly authorized 10 coin money, and 20 egulate
the value thereof and OF foreign coin and TO punish
the counterelting or sucn coin and OF the securities
OF the United states it has been strongly argued
by many able jur5ts that these latter clauses fairly
construed confer the power to make the
securities Of the United States q lawful tender
in payment OF debts. While am not aole TO see IN
them. standing alone, o Sufficient warrant for the
exercise oil this power, they not without decided
weight when we come to consider the question OF
the existence or this power as one necessary and
proper Tor carrying into execution other admitted
powers OF the government; for they show that 30 far
X
express power over the lawful money OF the coun-
try IT Was c0nlided to Congress and not 10 Inc
states; and t ~ no unreasonable inference Ihat II u
should be found necessary, IN carrying ihto euect
some OF the powers OF the government essential 10
It's successful operation TO make its securities per-
form the payment OF debts, such legislation would
be in harmony with the power over money granted
In express TERMS
IL being conceded, then. that the power under
consideration would not If exercised by Congress-
be INVASION OF any right reserved to the United
States but one which they are forbidden to employ
to Congress, can II be sustained as law necessary
ana proper at the time IL was enacted for carrying
pressy granted either Congress or to the govern
Inent or to any department. thereofY From the
organization OF the government under the present
constitution there have been from ume to time
attempts to limit the powers granted by
That instrument by narrow ana literal
rule of construction, and these nave been
specially directed to the general clause which we
have cited as the chief foundation OF the auxiliary
powers OF the government IL mas been SAID mat
this clause so lar from authorizing the use OF any
means winch could not have been used Wltnout IL, Ii
a restriction upon tue powers necessarily implied
Dy an instrument SO general IN it5 language. The
doctrine 49, that when an act Of Congress Is brought
TO the test or this clause OF the constitution It's ne
cesslty must be absolute and It's adaptation 70
the conceded purpose unquestionaDle. Nowhere
has this principe been met with more
emphatic denial, or more satisfactory relutation
than this court. That emilent iurlst and states
man. whose official career or over thirty years as
Chief Justice commenced very soon after this con.
stituton was adopted and whose decisions nave
man living or dead, has given this particular clause
the benent OF his fullest consideration. In the case
the United States vs. Fisher II Cranch, 35s de-
cided in 1904, the point in issue was the priority
claimed for the United States as creditor OF bank
on on the construction Of the statutes; bul
the power OF Congress to pass . such al, law
was also denied. The. Chief Justice said:-"lt
all laws winch shall be necessary and proper to
carry into execution the powers vested by the con-
stitution IN the government or In my department
tnereof' In construing this clause 1t would be In
correct and would produce endless difficulties II the
opinion should be maintained that no law was
authorized whlcn was not iudispensably necessary
to give effect to o specified power when various sys
tems might I've adopted Tor that purpose. IL might
sary because the end might be attained ny other
means. Congress must possess the choice OF means
are a m TACT e coaducyH to the exercise Of tSe
power granted by the constitution. 1t was ac-
coraingly held that, under the authority to
pay tue debts OF the Union, 1t could pass law CIV
ing priority for Its debts In case OF bankruptcy
But IN the memorable case OF McCullorch, vs.. The
state Of Maryland a Whalin, 3l6) the most OK
OPINION OF the same eminent eXpOunder OF the con-
stitutiOn. That case involved, as Is well known
the right OF Congress to establish the Bank OF the
United States and to authorize 1t to issue notes for
circulation. 1t was conceded that the right to IN
corporate or create such bank had NO specific
grant In any clause OF the constitution, still less the
right to authorize IL to issue notes Tor circulation as
money. But 1t was argued that as measure neces-
sary to enable the government to collect transfer
and pay out its revenues the organization OF bank
with this function within the power OF Congress.
Iu speaking OF the true meaning OF the word "neces-
saryn this clause OF the constitution, he says:
sDOes 1t always impart an absolute physical neces-
sity 80 strong that one thing to which another may
We think 1t does not. II reference be had TO its use
IN the common affairs OF the world or In approved
authors, we find that 1t frequently mparts more
than tnat one thing Is convenient or useful or es
sential TO another. To employ means necessary to
an end Is ina as ee 0y any
being confined to those single means, without which
the end would be unattalnable." yhe word 'neces-
saryn admits, he says, OF all degrees OF comparison.
thing may be necessary very necessary absolutely
or mdispensabiy necessary. This word then, Ike
Others ii used IN various senses and In its construc-
tion the subject, the context, the intention Of the
person using them are to be taken into view.
Let this be done In THIS case under consideration.
The subject Is the execution OF those great powers
which the welfare Of nation essentially depends.
1t must have been the intention OF those who gave
these powers TO insure as far as human prudence
could insure their beneficial execution This could
not be done by conlnin2 the choice of means to
such narrow limits as not to leave It In the power OF
Congress 70 adopt any which might be appropriate
aud which were conducive the end. This pro-
vision is made IN q constitution intended to endure
for ages to come ana consequently to be adapted
various crises OF human affairs TO have prescribed
the means by which the government should IN all
future time exercise It's powers would have been to
give the properties OF legal code. lt would have
been an unwlse attempt TO provide by immutabe
have been but dirny, and which be best provided
for as they occur. 70 have declared that the best
means shall not be used but those alone without
which the power given would be nugatory, would
have been 10 deprive the Legislature OF the capacity
70 avail itself Of experience to exercise Its reason
and to accommodate its Legislation to cir
cumstances. l have eyed at unusual length
these remarks Of CHIEF Justice Marshall be-
cause, though made half . century ago,
their applicability to the circumstances under which
Congress called to iLs aid the power Of making the
securities OF the government a legal tender Or q
means Of successfully prosecuting war which,
witnout such aid, seemed key 10 terminate its ex-
iBtence and TO borrow money which could IN no
other manner be borrowed, and to pay the debt ol
millions due to It's soldiers which could BY no other
means be paid seems to be almost prophetic II be
had had clearly before his mind the future history
OF Ills country he could not have better
characterized principle which would nave
rendered tine power TO carry on war nugatory,
which would have deprived Congress Of the capacity
to await, Itself OF experience, to exercise Its reason
and to accommodate Its legislation to circumstances
by the use OF the most appropriate means OF sup
porting the government In the crisis or It's late But
II Is said that the claim under consideration ID ad
monitory as to the use OF implied powers ana adds
nothing to what would have been authorized with