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bill Mr. Pitt explicitly denied that it made the bank-notes a legal tender. So far as concerned transactions between individuals, Mr. Pitt's denial was strictly true; but they were a legal tender on the part of the bank. The real effect of the act was to protect debtors from arrest after tender of bank-notes; though the creditor could recover cash by the ordinary course of law, even after such tender had been made. But British public opinion was so strongly in favor of the measure of bank suspension that but little resort was had to the courts for payment in cash, and Lord Chief-Justice Alvanley thanked God that few plaintiffs of such a character were to be found in England! "If it had been proposed," however, said the eminent Mr. Huskisson, M. P., and of Pitt's administration, in a pamphlet published about 1810, "at once to make bank-notes a legal tender, and in direct terms to enact that every man should be obliged thenceforward to receive them as equivalent to the gold-coin of the realm, such a proposition would have excited universal alarm.”

17

CHAPTER XXVIII.

ACTION OF THE SUPREME COURT OF THE UNITED STATES ON THE LEGAL TENDER THE CASE OF HEPBURN AGAINST GRISWOLDWHAT THE COURT AFFIRMED IN THAT CASE-RESIGNATION OF JUSTICE GRIER-RECONSTRUCTION OF THE COURT-APPOINTMENT OF JUSTICES STRONG AND BRADLEY-PROMPT ATTEMPT TO REVERSE HEPBURN AGAINST GRISWOLD CIRCUMSTANCES ATTENDING THAT ATTEMPT-THE REVERSAL ITSELF UNPRECEDENTED AND REVOLUTIONARY-HISTORY OF THE RECONSTRUCTION OF THE COURT-MR. CHASE ON HIS OWN ACTION IN HEPBURN AGAINST GRISWOLD.

1

ERE follows an account of the action of the Supreme Court of the United States upon the legal tender; probably the most remarkable chapter in the history of that tribunal : Mr. Justice Miller, in the dissenting opinion in the now celebrated case of Hepburn against Griswold, stated that the courts of fifteen States had affirmed the constitutionality of the legaltender act, and that but one had denied it; this latter was the Court of Appeals of the State of Kentucky. It is to be observed, however, with respect to this statement of Justice Miller, that where the members of the State courts were of opposing politics, the opinions on the subject were divided.

The facts in the case of Hepburn against Griswold are briefly these: On the 20th of June, 1860, a certain Mrs. Hepburn made a promissory note by the terms of which she was to

This chapter is not strictly in its chronological order; but its peculiar connec tion with the preceding chapter makes it proper that it should be inserted here. 98 Wallace, 604, et seq.

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pay to Henry Griswold on the 20th of February, 1862, eleven thousand two hundred and fifty dollars. At the time the note was made, as well as at the time it fell due, there certainly was no lawful money of the United States which was a legal tender in payment of private debts but gold and silver coin. Five days after the note became due-that is to say, on the 25th of February, 1862—the legal-tender act was approved by the President. Mrs. Hepburn's note not being paid at maturity, interest accrued upon it. In March, 1864, suit having meantime been brought on the note in the Louisville Chancery Court, she tendered $12,720 in United States legal-tender notes, being the amount of principal and interest and costs to the date of the tender, in satisfaction of Griswold's claim. The tender was refused. The notes were then tendered and paid into court; the Chancellor, "resolving all doubts in favor of the act of Congress," declared the tender good and adjudged the debt, interest and costs, to be satisfied accordingly. Griswold, however, was not satisfied, and appealed the matter to the Court of Errors of Kentucky, where the Chancellor's judgment was reversed and the case remanded with instructions accordingly. Mrs. Hepburn then carried it to the Supreme Court of the United States.

It was first argued in that court at the December term 1867; and at the December term 1868 it was elaborately reargued, specially with reference to the constitutional question.

The case was considered carefully and anxiously, and decision of it was not made until the December term 1869, when the legal-tender act was declared unconstitutional. The members of the court concurring in the opinion-which was prepared and read by Chief-Justice Chase-were, the Chief-Justice, and Associate Justices Nelson, Clifford, Grier, and Field; the dissenting opinion was read by Justice Miller, and was for himself and Justices Swayne and Davis.

The syllabus of the case as reported shows that the court, or rather a majority of its members, affirmed these propositions :

I. Construed by the plain import of their terms and the manifest intent of the Legislature, the statutes of 1862 and 1868, which make United States notes a legal tender in payment of debts, public and private, apply to debts contracted before as well as to debts contracted after enactment.

II. . . . .

....

IV. There is in the Constitution no express grant of legislative power to make any description of credit currency a legal tender in payment of debts.

V. The words "all laws necessary and proper for carrying into execution" powers expressly granted or vested have, in the Constitution, a sense equivalent to that of the word laws, not absolutely necessary indeed, but appropriate, plainly adapted to constitutional and legitimate ends, which are not prohibited, but consistent with the letter and spirit of the Constitution; laws really calculated to effect objects intrusted to the Government.

VI. Among means appropriate, plainly adapted, not inconsistent with the spirit of the Constitution, nor prohibited by its terms, the Legislature has unrestricted choice; but no power can be derived by implication from any express power to enact laws as means for carrying it into execution unless such laws come within this description.

VII. The making of notes or bills of credit a legal tender in payment of preexisting debts is not a means appropriate, plainly adapted, or really calculated to carry into effect any express power vested in Congress; is inconsistent with the spirit of the Constitution; and is prohibited by the Constitution.

VIII. The clause in the acts of 1862 and 1863 which makes United States notes a legal tender in payment of all debts, public and private, is, so far as it applies to debts contracted before the passage of those acts, unwarranted by the Constitution.

IX. Prior to the 25th of February, 1862, all contracts for the payment of money, not expressly stipulating otherwise, were, in legal effect and universal understanding, contracts for the payment of coin, and, under the Constitution, the parties to such contracts are respectively entitled to demand and bound to pay the sums due, according to their terms, in coin, notwithstanding the clause in that act, and the subsequent acts of like tenor, which made United State notes a legal tender in payment of such debts.

This judgment of the Supreme Court was indorsed by many of the most influential Republican journals, and no doubt had an important beneficial effect upon the national credit both at home and abroad. But an immediate effort was made to reverse it. The circumstances attending that effort attracted wide attention and much severe comment.

It was freely charged by Democratic partisans and by some Republicans also, that if the judgment in Hepburn against Griswold had not been inimical to the interests of certain powerful railroad corporations, it would have stood. It was alleged and

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was not denied, that when Messrs. Strong and Bradley were made members of the court they were both interested as shareholder in the Camden & Amboy Railroad Company. It was alleged also that one or both these gentlemen had formerly been employed as law counsel by that company, and as such counsel had given opinions affirming the legal tender to be constitutional. It was known too, that the Camden & Amboy Company had, in paying the interest upon their bonds subsequent to the decision in Hepburn against Griswold, made a reservation looking to a reversal of the judgment in that case.

But it is seems incredible that a motive so inadequate and ignoble as the pecuniary interests of any private corporations could have moved the President to the appointment of the new justices, or the new justices to their perhaps indiscreetly prompt efforts to procure a reversal; to the mind of leading Republicans -men of irreproachable character and patriotism-it seemed of vital importance to the best interests of the country that the legal tender should be supported by the court. The immense services it had performed in the overthrow of the rebellion were admitted. Many public men believed that without it the national efforts would have been in vain. Its use might become just as indispensable in some future great emergency. Should the country be deprived, by judical interpretation, of recourse to it if the necessity should ever again arise? To say that it should, seemed a kind of political suicide.

Mr. Justice Strong became a member of the Supreme Court on the 14th of March, 1870, by nomination and confirmation, in place of Mr. Justice Grier, whose resignation took effect on the 1st of February; but there was no intimation of any purpose to urge a reargument of the legal-tender question until after the confirmation by the Senate of Mr. Bradley as an additional justice, whose appointment was authorized by an act of Congress passed April 10, 1869, to take effect on the first Monday of the succeeding December, and who was confirmed some weeks after his nomination, on the 21st of March, 1870. Mr. Justice Bradley went from New Jersey to Washington on the 22d of March; he was sworn into office on the 23d, and took his seat as a member of the court on the 24th. The next day, Friday, the first motion day afterward, the Attorney-Gen