The times. [volume] (Richmond, Va.) 1890-1903, 1893-02-05
CAN CONGRESS AUTHORIZE GOLD
CONTRACTS TO BE PAID IN SILVER?

Il
late quoted n paragraph in letter writ
ten by Judge Robert w. Hughes to
newspaper. as follows:
IL do not suppose any lawyer con
versant with constitutional principles VII
contend for the validity of gold contracts
made in contravention or circumventioI
of express laws Of Congress defining lega
| tender"
Notwithstanding the confidence with
which Judge Hughes dismisses the posi-
bIlity Of contest in such a case. he could
find, IL II should arise. an abundance OF
lawyers thoroughly conversant with our
constitutional law who would make the
very contention that he supposes impos-
| sible, and as many gold contracts have
recently been made. and as II Is likely
| many more will be made. the Importance
of the subject would seem to justify some
| discussion of II.
The case is not wholly destitute Of an
express adjudication. which. however. is
very obscure, by the Supreme Court Of the
United States. In the case Of Bronson v.
Rodes. Wall. 229. A. having borrowed
money Of B., in 1851, gave him bond by
which he promised to repay the money ''in
gold and silver coin, lawful money Of the
United States" After the war he ten
dered payment in legal tender greenback.
The Supreme Court Of the United States
decided that this was a contract to de-
liver a certain number OF pieces OF coin Of
&ot, ~ Nnn M that ~
could not be performed by rendering pay
ment Of the amount In legal tender green
back. II Is simply impossible to deter
mine the ground upon which the court
opinion that would seem to indicate I'm
intention to deny to Congress any power
to pass an act that would authorize the
debtor in such a case to solve his obliga-
tions with anything other than the spe-
cific articles that the contract calls for.
There is also much in II which would
seem to indicate that the court meant to
say no more than that 1t could not suppose
Congress intended the legal tender fea-
ture OF greenbacks TO apply to any such
case. The one view affects the constltu-
tional power Of Congress; the other Is
nothing but construction OF the lam
guage, and In it's act, to ascertain the
kinds Of contracts to which 1t applies.
At the Same time the Supreme Court de-
cided the case of Butler V. Horwitz. Id,
25s The contract in that case was made
L. In, 10 nd tn n
estate. in the following words: yield
ing and paying the yearly rent or sum OF
f15, current money of Maryland payable
In English golden guineas, weighing five
pennyweights and six grains. at thirty-five
shillings each. and other gold and silver
at their present established weight and
rate. according to act OF Assembly" The
court held that this contract could not
be performed by rendering greenbacks.
but II did not at all clear up the ambig-
uity OF the preceding case. nor has that
ambiguity been made any clearer by the
subsequent decision of Trebllcock v. Will
son, ~ Wall. IL.
The case. then, is one which, when It
arises. must be decided upon principle.
without the aid Of direct authority.
II contracts should be made in the fol-
lowing language, "A. promises to deliver
to B. on the LIST day of July, 100 pieces Of
gold. each weighing % $40 grains, nine
parts of each of which shall be pure
gold and one part copper" the contract
ha 20 hut 70
deliver specific articles. In the Bronson "
Rodes case, Mr.. Justice Miller dissented
holding that the contract called for dol
lars. and that in the eye of the law there
could be no difference between dollars,
and as greenbacks were dollars, they
would pay the claim. But in the Butler
V. Rorwitz case. he agreed that the debt
could not be paid in greenbacks, because
the contract was to deliver English
guineas as a commodity. like an agree
ment to deliver fifty guineas of pure gold.
This is important as a concession upon
the part OF the leader Of that side of the
discussion that a contract to deliver
specific articles stands upon an entirely
uillcicHt lVotiilb a cOHttdCt " NN-
liver dollars. although the kind Of DOL
lars may be specified
Now, The Times has no difficulty In
saying that a contract to deliver 100
pieces Of gold. each weighing Is s-10th
grains. nine-tenths fine. cannot logically
be satisfied by q delivery Of anything
whatever but 100 such pieces or their mar
ket value II an act OF Congress can
authorize a man who has agreed to de-
liver 100 such pieces to solve his obliga-
ton by delivering 100 pieces OF paper. or
100 pieces Of silver. 1t is because Congress
Is not bound by any constitutional obi
cation whatever In respect to this matter.
VIII the Supreme Court OF the United
States yield this unlimited power over
private property to Congress-will the
American people yield It?
In the legal tender cases, IL Wall at
page $50, discussing this very question,
Chief Justice ChaSe emphatically denies
to Congress power to pass law impair
ing the obligation of contracts, and the
same doctrine Is held substantially by
Chief Justice Marshall, 6 Cranch 1876, and
by the Supreme Court in Loan Associa-
ton v. Topeka 20. Wall 655, Parkersburg
V. Brown LOG u. S. r. 4S7 and In Hurtado
v California 40 IT. 8 r h27