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tory ground upon which the foremost dissenting member of the court placed the argument in favor of the issue of legaltender paper, might naturally have confirmed the Chief Justice in his early conviction, that the Constitution gave Congress no power to make anything but gold and silver coin a lawful tender in payment of private debts. His own argument in this case, and his dissenting opinion, when it was overruled in the Legal Tender cases (12 Wallace, 457, 570), is perhaps as satisfactory as any which has thus far been made upon the basis of finding the warrant for any such law in the express provisions of the Constitution.
The dissent of Mr. Justice Miller in the case of Hepburn v. Griswold places the argument in favor of the constitutionality of the legal-tender act, upon the ground, that it was a “proper and important, and at the time almost an indispensable measure for carrying into execution some of the powers vested by the Constitution in the government of the United States The learned judge is unable to specify any one particular power of the national government to which this resort became an indispensable accessory, which seems an unfortunate infirmity in the argument; for despotism and irresponsible power are wont to lurk under such convenient generalities, and we involuntarily suspect the soundness of any theory which is not able to define, specifically, the grounds upon which its advocates are content to rest it. The learned judge, in his dissent, selects the War Power and the Borrowing Power, as the most plausible powers of the national government upon which to graft this, as an incident. This must appear to every experienced lawyer, as it no doubt did to the Chief Justice, a most unfortunate selection, at least in one very important particular. Neither of these powers is of the same class, or kind, with that of lawful tender; in legal phrase it is not ejusdem generis. This must be classed, and could only, naturally, be sought under the power to coin money and to provide a circulation for the country, and would naturally be expected to appear there, if anywhere, whether it were called a distinct power, or one accessory to others.
In looking at the specific provisions of the Constitution under this head, there would seem to be no question that the
money function or power of the government was regarded, in its entirety, as a national function or power, and as such, was intended to be transferred, in all its parts and incidents, to the national government. Many of the functions of the national government were enjoyed in common with the States, such as making laws, erecting courts of justice, levying taxes, etc. Others, exclusively of a national character, were eridently intended to be transferred in solido to the national government. The money power and the commercial power were very clearly of this character, and with equal certainty, it appears, they were intended to be transferred entire to the government then being created, for the exercise of the exclusive national sovereignty, which powers before had resided largely in the separate States, either in whole, or concurrently with the former national authority. This is very apparent from the express provisions of the Constitution. In enumerating the powers of Congress the words used are, “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. To provide for the punishment of counterfeiting the securities and current coin of the United States.” The word “money” is again used in the provision for raising and supporting armies, in limiting the “appropriation of money to that use" to the term of two years. Again it is provided that “no money shall be drawn from the treasury,” etc. And the States are expressly prohibited “to coin money, emit bills of credit; make anything but gold and silver coin a tender in payment of debts." From all which we must infer, that the making and the regulating the circulation and the value of money, and of everything supplying the place of money, must have been intended to be thenceforth exclusively under the control of the national government. The States had before, as is well known, emitted bills of credit and made them lawful tender for debts. (Craig v. Missouri, 4 Pet., U. S. 410.) All this is now prohibited to the States, and unless we can suppose it was intended altogether to prohibit the circulation and tender of such securities in future, we must suppose that power was intended to be exercised thereafter exclusively by the national government. If not, it is difficult to conjecture why it should have
been expressly denied to the States and not to the nation. The granting titles of nobility is expressly denied, both to the States and the nation, because it was not intended to exist under the new form of government, in any form, or anywhere. Why, then, if it were intended to deny the power, both in the nation and the States, of issuing bills of credit and making them legal tender for private debts, should it have been expressly denied to the States and not to the national government? There can be no fair answer, as it seems to us, to this inquiry, except to recognize its continued existence in the national government. The fact, too, that provision is made, in the words of the Constitution, for punishing the counterfeiting the securities and current coin of the United States," shows very clearly, that the existence and necessity of protecting the genuineness of such securities, as part of the currency of the nation, was distinctly in the mind of the framers of the Constitution, at the time it was presented for adoption. This provision for the punishment of counterfeiting the “securities” and “current coin” of the United States shows, very clearly, also, that it was intended for the protection of the currency, else the subject might have been left to the protection of the general law against the forgery of contracts. The word “counterfeiting,” too, has a special application, by common usage and consent, to the currency of the country, although applicable also, in a less strict sense, to other forgeries. The use of the word “money," too, as embracing all appropriations from and the payment of all sums out of the treasury, would favor the same construction that money tended to embrace, not only gold and silver coin, but all securities of the government used as circulation, or in payment of public appropriations from the treasury, for which, from some source, there has always, from before the date of the Constitution, been found a necessity. There were four banks of issue, in as many different States, existing at that date, and they have been constantly increasing in the States, until the national government finally deemed it the true policy to tax them out of existence, during the war, and to substitute legal-tender notes and the bills of the national banks in their place. This measure, which was declared legal by a majority
of the National Supreme Court, in Veazie Bank v. Fenno, 8 Wallace, 533, is certainly not defensible upon any other grounds than that it is the duty of the national government to supply all kinds of circulation demanded by the exigencies of . trade and commerce in the country, or of the government, as is justly maintained in the dissenting opinion of Mr. Justice Nelson, concurred in by Mr. Justice Davis. Some of our most eminent constitutional jurists, including Mr. Justice Story, who dissented from the opinion of the court in Briscoe v. The Bank of Kentucky, 11 Peters, U. S. 257, upon this ground, have maintained this view from the first adoption of the Constitution, namely, that the issue, by State banks, of bills for circulation, was not defensible under it. And this view may now be regarded as practically established. Indeed, we may fairly say, legally established, since the decision in Veazie Bank v. Fenno is placed by the Chief Justice upon that among other grounds, and it is the only one whereby the case can be made to stand with other decisions of the same court. We cannot imagine any ground upon which the creation of national banks of issue by Congress can be vindicated, except that under the United States Constitution it becomes the national duty to supply such a kind and amount of paper circulation as is demanded by the exigencies of the government and of trade and commerce throughout the country. Upon this ground only, therefore, that the Constitution was intended to transfer the making and regulating of the entire circulation of the country to the national government, and to deny any interference with it on the part of the States, is it possible, in our judgment, to find a legal basis whereon to rest the legaltender provision in the issue of bills of credit during the war. That has always been done by the independent and sovereign European states. (Emperor of Austria v. Kossuth, 7 Jur. N. S. 433, id. 639.) And the British Parliament have made bills of the Bank of England legal tender at an early day for some purposes, and ultimately indeed for most purposes. And the same was the constant and well-recognized practice of the different American States, as to bills of credit, before the adoption of the United States Constitution. (Craig v. The State of Missouri, 4 Peters, U. S. 410.) If then we reach the conclusion,
that it was intended to transfer to the national government the well known and long recognized function of national sovereignty, to coin money and emit bills of credit, and to declare them part of the circulation of the country, for purposes of trade and commerce, and thus make them lawful tender in payment of private debts, and to deny this entire function of sovereignty to the States, we shall find no difficulty in upholding the legal-tender acts, as proper, in a special emergency, notwithstanding we may suppose it was also the purpose of the Constitution to provide, either a currency in gold and silver, for ordinary times, or for all times, one redeemable in that medium. But the attempt to deduce such a power from some independent source in the Constitution, if it is not fairly implied in the definitions applicable to the money power, seems to us scarcely less than absurd. It is certainly in conflict with all the known canons of statutory and constitutional construction. For if it is not granted, either in terms or by fair implication, in that provision of which it is kindred, then it is there denied ; and if denied there, it would seem a most unnatural and absurd conclusion to attempt to extract it by some refined process of construction, by reason of the pressure of an unprecedented war, out of an entirely foreign provision in the Constitution. We have been compelled to concede almost superhuman power to the war in turning and overturning principles of construction in the Constitution, but we have never found any reason for adopting this strange conclusion involved in the opinion by which the legal-tender clause was finally upheld, and we are satisfied from his opinion that the Chief Justice felt himself driven to the same conclusion, and we entertain no doubt that all good lawyers held the same views upon this question before the war. Nothing short of a degree of fever heat upon all questions connected with the war has ever been able, as far as we know, to drive any good lawyer to the conclusion now held on the subject of the legaltender clause. And we feel assured, that the longer the question is discussed, and the more clearly it is understood in all its bearings, the more it will redound to the credit of Chief Justice Chase that he felt an utter inability to adopt the only view propounded by the advocates of the validity of the legal-tender