Year: 1879

ALlTf TO BE DETEHMlSED-ElSTOEY OF LII


IGATIoN ON THE SUBJECT.


The agreement between Mr.. Chittendcn member
of Congress from Brooklyn, ana General L. i. Butler
to carry to the supreme Court which that
Court shall have to decide on the constitutional
power of the government to issue legal tender notes
in time peace. has been under private discussion
for some time. Mr.. Chittenden interested himself in
the undertaking to have this question judcially set
tied long ago last June He found great hesta-
ton. even among persons who agreed with him. to
assist in the matter. But Senator Edmunds agreed
some months ago to associate counsel in pre-
pairing and arguing before the Su-
preme Court. and Mr.. William Allen Butler
retained by Mr. Chittenden counsel at
the same time. A suggestion was made to
Mr.. Peter Cooper to undertake the expense of the
greenback side OF the suit. but he seemed unwilling
do account of his great age and growing infrm-
tiles. Mr.. Chittcndcn asked General Butler to take
up the cause legal tender, which the General very
frankly did.


The Supreme Court decided in February, 1869,
that coin contracts valid and can be
enforced. the case being Bronson against
Rhodes In February. 1870 it decided. in Hepburn
against Grswold. that all contracts payable in dol
lars and made prior to the 25th of February, 1862
the of the legal tender act must be paid in coin
or it's equivalent Its words follows:-


We obliged to conclude that act making
mere promises to pay dollars a legal tender in pay
mcnt of debts previously contracted is not means
appropriate, plainly adapted, really calculated to
carry into effect any express power vested in Con-
gress; that such act is inconsistent with the
spirit OF the constitution. and that it is prohibited
by the constitution.


The Supreme Court consisted then of seven Judges
Chief Justice Chase and Justices Nelson Clifford and
Field. who united in the above decision, and JUS
tees Swayne, Miller and Davis. These latter held in
their dissenting opinion that the Legal Tender act
was justified by the extreme exGency of the and
the necessity OF the government saving itself from
destruction.


Later the Bench filed up by the appointment
of Justices Strong and Bradley, and the question
rcopened at the instance of Attorney General Hoar
and the Court in the of Knox against Lee
reversed the previous decision and decided that the
Legal Tender act applied to contracts made before its
passage as we'll AFTER Tho decision is in these
words:-


We hold the acts Of Congress constitutional as ap-
piled to contracts made either before after their
passage. In so holding we overrule much Of what
decided in Hepburn Griswold ruled the
acts unwarrantcd by tho constitution far as thcy
apply to contracts made before their enactment.
That decided by divided Court and by
Court having less number of judges than the law
then in existence provided this Court shall have.


In this opinion Ave of the nine judges concurrcd.
They were Justices swayne. Miller Davis Strong
and Bradley. Chief Justice Chase and Justices Mel
son, Clifford and Field presented q dissenting
opinion, in which they said


We have no hesitation, therefore, in declaring our
conviction that the making of these notes legal
der was not necessary or proper means to the
power OF the government.


The questions now to be raised In the case to be
presented by Mr.. Chittenden and General Butler are
understood to be different from any already acted on
and decided by the Court. In this particular they
will no. involve but. the contrary. exclude the
war power the right of the government a means
of sedcfence in time of to give to it's notes the
legal tender quality. The case will como in such
shape that the Court must decide


fTrst-whether or no Congress under the constitu-
ton can time of peace give to Treasury notes the
quality of legal tender for private debts.


Second-whethcr a reissue of legal tender note,
the original of which dated before the closing
of the war; does not lose the legal tender quality


And finally it is intended OF course, to present
the case that the Court shall decide whether no
Congress constitudonally order the reissue of
legal tender notes after they have been redeemed by
the Treasury under the Resumption act 1t did by
law passed at the long session last year.


General Butler will be observed in his letter TO
Mr. Chittenden. holds that Congress may, under the
constitution. make legal tender money out Of any
thing and at any time.


i before
Supreme Court for the fall term in October. The
settlement Of the question. in whatever way
tho Court may decide It. cannot fail to
have an cxtremel. important effect on the political
divisions of the country. If IL shall be held that the
constitution grants TO Congress the right 10 issue
legal tender notes at any time the millennium of the
grccnbackers will have come. II IL decides that Con-
gross no such constitutional power then
tho Treasury notes now out will TO
have the legal tender quality. the Treasury may
cease TO reissue legal tender notes which il has 70.
deemed and In that national bank notes would
take the place of government paper money to tho
extent to which the business of the country shall
demand notes. tho National Bank act allowing Of an
unlimited extent.


The following is the correspondence on tho sub.
ject between Mr.. Chittcndcn and General Butlcr:-


HousE OF REPRESENTATIVE


WASHINGTON. ID. c. Jan. lG 1879. I


Dy,u (irxTRAr-I understood you 60 say ycster-
day that you believed the government has constitu-
backs and that you also willing ~ antagonze the
'opposing view In the courts


L now propose that seek o suitable test case,
(which. OF course. will DO real one) with the
tuai agreement TO advance Il as rapidly may he
practicable to the supreme Court for final decision
IL you sgrcc to this I will invite you to meet my
counsel at an early day to confer In respect to the
Very respectfully. your obcticnt servant.
$. d. CHTrTENDEN
Hon. BESJAMIS +. BUTLER


WASHINGTON, ID. c., Feb. T. 1870.
MY DEAR Mr. CuIrrESDES:--I entertain the most
unwavcring faith in the power Of the government TO
coin money out of any material 10 mt; aud the
fact that there have been improvements since tho
adoption of tho constitution in the way ~ making
money more limits its constitutional power to
make money in tho best way and most cheap and
convenient Tor the use of the people than bee cause
there tclegraphs and steamboats, az the
tmo the power was given IL to regulate interstate
commerce and post routes therefore IL must carry
the mails on horseback in saddle bags.
am willing. tor the sake of tho good IL will do. to
undertake the labor of arguing that question before
the courts I'm any manner that may be made
OF course actual case.


Now n easily he made for friendly suit
TO bring up the points. Lot note Of any cf
upward OF $4,000 be presented to him for payment.


Let him tender therefor pay in grccnbacks OF the
of 1878 the issue of any date since August
90 1896, which is the official date of tho end OF the
war. Let tho party holding the note refuse