The New York herald., 1870-02-08

direrent descriptions OF debts PAYABLE generally In
money--that Il say, in dollars and parts of dol
lar These terms, on the contrary, In Their obvious
import, Include equally all debts not specially ex-
pressed to be payable IN gold or silver whether
arising under past contracts and already due or
arising under such contracts and to become due at
future day, or arising ana becoming due under sub
sequent contracts strict ana literal construction,
indeed, would, as suggested by Mr.. Justice story,
In respect TO the same word used In the constitution
Il story ON Constitution. 92l limit the word "debtsn
TO debts existing; and this construction cannot be
accepted, because the limitations sanctioned by II
cannot be reconcled with the obvious scope and
purpose of the act, 1t Is certainly conclusive against
any Interpretation which win exclude existing debts
from its operation. The same CONCLUSION results
IRON the exception OF interest on loans and duties
Imports, from the effect OF the legal tender clause.
This execution affords an irresistible implication
thar description or debts, whenever contracted,
can be Withdrawn from the erect or the act II not
included within the terms on the reasonable intent
OF the exception. And 1t Is worthy OF observation
In this connection that In all the deoates to which
the act gave occasion In Congress no suggestion
was ever made that the legal tender clause did not
apply Us fully to contra cts made before as to con-
tracts made after It's passage These considerations
seem 10 us conclusive We do NOT THINK ourselves
at liberty, therefore, To say taat Congress did not
intend u MAKE the notes authorized oy TIA legal
tender IN payment OF debts contracted before the
passage OF the act. We are thus Drolght 10 the
question whether Congress power TO make notes
issued It's authority legal lender IN payment
OF debts which, when contracted, were payable III
gold ana silver coin.
Yhe delicacy ana Importance OF this question have
| not been oyerrsted IN the argument. This court
always approaches the consideration OF questions OF
this nature reluctantly and ITS constant rule OF de-
cison has been and is that acts OF Congress must
be regarded as constitutional uiress clearly shown
10 be otherwise. But the CONSTITUTION the funda-
| mental law vi the United states. BY II the people
have created government, oelned aus powers, pre-
sctiDed Their limits, distrlbu ed them among the
different departments ana directed In general the
manner OF their exercise. No department. OF the
government mas any other powers than tuOse dele
gated to 1t by the people. All the legislative power
granted by the constitution belongs TO Congress.
bat It has no legislative power which
is not thus granted; and the same obser-
vation Il equally true IN lis application to
respectNely TO the President and tue courts All
nese powers differ In kind, but Tot in or Inn
itatons they all arise from the constitution and are
niLed ny It's terms. 1t Is the junction OF the judi
cary to interpret and apply the law between parties
| as they afise Tor judgment. II can only declare
what the law Is, and enforce By proper process the
law thus declared But in ascertaning the respect
I've rights OF parties 1t frequently becomes necessary
inconsistent with the fundamental law. No enact
ment not III pursuance VI authority conferred by
u can create obligations or confer rights for such Is
the express declaration OF the constitution Itself In
these Words:
This constitution and the laws OF the United States which
made under the authority OF the United States
sna os the law OF the land anu the Judges
laws Of any State to the contrary Notwithstanding
Not every acs Of Congress- then, Is to pe regarded
tne supreme law OF the land; nor is it by every
act OF Congress that the judges are bound. Ihis
character and Tins force belong to such acts a. are
''nade IN pursuance Of the conSttutionu When,
therefore, case arises for judicial determination
aud the decision depends on the alleged ncOnss-
tency of legislative provision with the funda-
mental law 1t Is the plan duty Of the Court to com
pare the act WIN the constitution. and II the former
cannot, upon ialr construction, DO reconced with
thn lnt m tn hA ninn
tban the statute This seems SO PLAN that 1t imp0s
slbe 70 MAKER II palmer BY argument II II
supreme law. 1t is neither necessary nor
useful IN any case TO inquire whether
Of ana ihe oath which every member OF this court
Is required 10 take, That ne "wlll administer justice
without respect 10 persons and do equal right 10
the poor ana the rich, and faithfully perform the
oulies monument upon hun to the best his ability
\ and understanding, agreeaby 10 the constitution
and laws vi The United States" becomes al IDLE and
unmeanlng form.
| The case before US Is one OF private rights. The
plaintiff IN the court below sought recover OF tue
deeudanss certain sum expressed on the face OF
| prosnlssOry note. The defendants insisted on the
right, under The act OF February rs, 1862 TO acqut
themselves OF their obligation by rendering IN pay
ment sum nOninally equal in United states notes;
hut the note mad been executed before the pas
on his right ander the constitution, 10 be paid the
amount uue In gold and silver, and 1t has not been,
/ anu .cannot De, denied that the plainLin was en-
titled TO Judgment according to his claim. unless
bound by constitutional law to accept the notes as
CON. Thus Two questions were directly presented:
Were the defendants relieved oy the act from the
| obligation assumed III the c0ntract2 Could the
pialntln De Compelled by Judgment OF the Court 10
receive III payment currency OF different nature
aud tiiit Wnicn was IN The contemplated
Of t,e purnes when the contract was NADER me
Cours oi Appeas resolves both questions in
the negative, ana The defendants seek the reversal
OF Lnat Judgment by writ or error. Ii becomes our
uuiy, therefore, TO determine whether the act Of
February rs, 1862 so ar as IL makes United States
notes iega tender IN payment OF debts contracted
prior 70 It's passage, Is constitutional aud valid
otherwise. Unuer a deep sense OF our obligation to
perform this duty to the best Of our ability and
derstandng, We shall proceed TO dispose Of the case
pre- ented py the record.
we nave aiready SAID, and ii is generally II not
| universally conceded, that the Cover meRt OF the
United states is one OF limited powers, and that
department possesses any authority not granted by
the constitution. IL Is not necessary, however, III
| order To prove the existence OF a particular au-
tn0rlty, to snow a particular ana express grant.
| 1ne design oi the constitution was TO establish
government competent to take direction
nation anu same time to mark by sufficiently
definite lines the sphere OF It's operations To this
end IL was neediul only 10 make express grants OF
| general powers, coupled with furtDer grant Of
| such incidental and auxiliary powers as might he
required Tor the exercise OF the powers expressly
| granted These powers are necessarily extensive
lL has been found, indeed III tne practical admins
tratlon OF the government that very large part II
not the largest part, OF ITS functions have been per-
formed Ia the exercise OF powers thus implied. But
The extension of power by implication was regarded
WIN some apprehension by the wise men who
| framed and by the intelligent citizens who adopted
the Constitution. This apprehension Is manifest in
the terms by which the grant OF incidental and
! iliary power Is made All powers oi this nature
| are Included under the description Of power TO
make all laws necessary and proper for carrying
the powers expressly granted TO Congress-
or vested by the constitution IN the government or
In any OF It's departments afairs.n The same ap-
prenenson Is equally apparent In tue tenth article Of
| the amendments, winch declares tnat 1.-The powers
not delegated TO the United states by the consttu-
ton, nor prouioed BY It TO the states reserved
TO the states or the people" We do not to cay
that either OF these constitutional provisions Ia to be
taken as restricting any exercise OF power fairly
warranted by the legitimate derivation from one Of
| the enumerated or express powers. The first was
undoubtedly Introduced TO exclude all doubt in re-
| specL 70 the existence OF implied powers,
| while the words . necessary ana pro-
per " were Intended 10 have sense,
:, use tne words VI Mr. Justice story, "at once ad-
| means used Ia the execution. OF an express power
| should be do1d .fde appropriate to the end" Il
Story on .onatitution 1s2, par. l253.) The second
provision was Intended to have Ike admonitory