The New York herald., 1870-02-08


The question before u.s. then, resolves itself into
ths:-ls the clause which makes the united states
notes legal tender for debts contracted prior to Its
enactment law OF the description stated IN the
ruler IL IS not doubted that the power to establish
u standard OF value by which all other values may
be measured-or. IN other words TO determine what
shall be lawful money aud regal tender-ls In lts
nature and OF necessity governmental power. III
Is In all countries exercised ny the government. In
the United States far as relates to the precious
metals 1t Is vested In Congress by the grant OF the
power to coin money. But can power to impart
these qualities 10 notes or promises TO pay money
when offered In discharge OF pre-existlug debLs be
derived from the coinage power or from any otner
power expressly given? Ii Ia certainly not the
same power as the power TO coin money, Is II In
any reasonable, satisfactory sense an appropriate
or PLAINLY adopted means to the exercise OF thdS
power; nor there for aging that it Is
Implied In or incidental TO the power TO regulate the
value Of coined money OF the United States or or
foreign CONS This power OF regulation ~ a power
to determine the weight, purity, form and impress
sion OF the several colns and their relation 10 each
elary unit OF the United States. Nor is the power
10 make notes legal tender the same the power
to Issue notes TO De used as currency The old
clothed By express grant with the power u emit
bulls OF credit, which are, In fact notes for cir
culation as currency, and yet that Congress
was not clothed with power TO make their bills
legal tender on payment And this court has re-
Gently held that Congress- under The constitution,
possesses the same power TO emit bills or noes az
Incidental TO other powers though not denomlnated
among these expressly granted, but IL expressly
GUIDED nothing on tho question OF legal tenders. In,
deed we are not aware that has ever been claimed
that the power 10 issue bills or notes has any lde-
tity with the power TO make them legal tender; ON
the contrary, the whole history OF the country
reiutes that notion. The States have always been
held to possess the power 10 authorize and reRu-
banks or individuals. subject, as mas been
lately determined, to the control OF Congress,
for the purpose Of establishing and securing
national currency, and yet the States are
expressly prohibited by the constitution IRON max
Ing anything but gold and silver coin legal tender.
This seems decisive on the point that the power
to Issue notes and Cne power to make them iegai
tender are not the same power, and that they nave
no necessary connection with each other. But 1t
has been maintained III argument that the power
TO make United States notes legal tender IN pay.
ment OF all debts Is means appropriately and
plainly adapted to the execution OF the power to
carry on war, of the power to regulate commerce
Is not prohibited inconsistent wItn the letter
or spirit OF the constitution, then The act which
makes them such legal tenders must be held TO be
CONSTITUTIONAL
LeU us, then first inuuire whether It is an appro.
pirate and plainly adapted means for carrying on
war. The affirmative argument may be thus
stated:-Consress has power 10 declare and provide
for carrying Congress has also power to emit
bills OF credit, circulating notes, receivable for
government dues aud payable, 30 far, at least, as
parties willing to receive them, In discharge OF
government obligations 1t will facilitate the use OF
such notes IN disbursements to make them legal
tender in payment OF existing debts therefore Con-
gre5s may make such notes q legal tender IL i3
dnicult to to what express power the authority
to make notes legal tendor In payment OF debts
preexistIng IN contracts may not be upheld Incl
dental upon the principles OF this argument. Is
there any power which does not involve the use OF
moneys And is there any doubt that Congress may
issue and bills VI credit money In the execution
or any power The power to establish Post Ofilces
ana post roads, for example, Involves the colect on
and disbursement or large sum. IL not the power
TO make notes lega! tender as clearly incidental to
this power as to the war powers The answer to
argument therefore, seems to prove too much. 1t
carries the doctrine OF implied powers very be-
yond any extent hitherto given 1t. 1t asserts tnat
whatever Ill any degree promotes an end within the
scope of q general power, whether III the correct
sense OF the word 'aDproprateh or not may be done
in the exercise OF an implied power. Can
tnaL tins IL not question Tor tho court
deciding. cause but ior the Congress exer-
to tins is that the admission OF legislative power to
determine finally what powers have the described
plainly granted, and then to exercise absolutely and
without liability to question In cases Involving pri
vate rights the powers thus determined TO have that
relation would completely change the nature or
American g0vernment. IL would convert the gov
ernment, Wnich the people ordained as govern
ment OF limited powers, into government OF unlm-
tied powers; 1t would obhterate every criterion
which this court, speaking through the venerated
Chief Justice, IN the case already cited, established
latlve acts are constitutional or unconstitutional.
Undoubtedly among means appropriate, plainly
adapted, really calculated, the Legislature has un-
restricted ch0ice but there can be no Implied power
to use means not within this description
NOW, then, let 1t be considered what has actually
been done IN the provision OF national currency. In
July and August, 1851 aud February 1882 the issue
OF Sixty millions in United States notes payable on de-
mand was authorized az u S. statues. $50. sl3
were not declared legal tender until March, 1862
az u ). statutes, 370), when the amount III circula
lation in 1862 ana 1868 2 U. s. Statutes 345 5s2,
709, the issue OF four hundred and nifty mil
S s ID 5 in sso
OF the government, was authorized, sub
ject to certain restrictions AS TO the ty millions
bonds OF the national loans for all debts
due TO or from the United States ex
sp 5 eb on and Wese also ees eaa
tender. In March, ls83 az U. s. Statutes, 7ll) the
issue Of notes for parts OF dollar was authorized
to amount not exceeding fifty millions OF dollars.
These noJes were not declared q legal tender, but
were made redeemaDle un der regulations to be pre-
scrIDed by the Secretary OF the Treasury. In Feb
ruary, 1853 Il. U. s. statutes, $685. the issue OF three
hundred millions or dollars In notes Of National
Banking Associations was authorized These notes
were mace receivable 10 the same extent as United
States notes, and provisiOn was made to secure
their redemption; but tney were not made legal
tender These several descriptions Of notes
have since constituted under the various
acts OF Congress- tue common currency or the
United States. The notes wnich were not declared q
legal tender have circulated with these which were
80 declared, without un1avorable discrimination.
1t may be added as part OF the history that Otler
issues bearing interest ut various rates were autho
rlzed and made legal tender, except In redemption
OF bank notes, Ior face amount exclusive OF interest,"
Such the one and two years five per cent notes
and the three years compound interest notes Q3,
United States Statutes, 2l8 245 These notes never
entered largely or permanently into the circulation,
and there Is no reason to think that their utility was
increased or diminished by the act which declared
them legal tender for the face amount. They need
not be further considered here They serve only TO
illustrate the tendency, remarked by all who have
investigated the subject Of paper money, to increase
the volume OF irredeemable issues and to extend
definitely the application OF the quality OF legal
tenders. That IL carried no further during tho
present civil war. and has been carried no iurther
since, Is due TO circumstances the consideration or
which does not belong TO this discussion
We recur, then, to the question undor consid era
ton. No one questions the general CONSTITUTIONAL
ity, and not very many perhaps the general ex-
pedency, Of the legislation by which note cur.
rency has been authorized in recent years. The
doubt is as to the power to declare par
tIcular class OF these notes to be q legal tender
In payment OF pre-existlng debts The only ground
upon which this point Is asserted IS not tnat the
issue OF notes was an appropriate and plainly
adapted means for carrying on the war, for
that IS admitted, but the making Of them o legal
tender to the extent mentioned was such a means.
NOW we have seen tnt OF all the notes issued those