CONGRESS, UNITED STATES. 



161 



Delaware, in his speech of more than a year 

 ago, saw proper to say : 



" Nor do I care now to recite the sad history of the 

 overthrow of one of the most deliberate decisions ever 

 reached by the Supreme Court, accomplished so 

 speedily by the active interference and power of Presi- 

 dent Grant and Mr. Hoar, his Attorney-General, by 

 the change not in the opinion but In the personnel of 

 the tribunal, and an increase in its numbers. . . . 

 On May 1, 1871, this decision was overruled by the 

 reconstructed court by a vote of 5 to 4, and their judg- 

 ment is to be found in the twelfth volume of Wai- 

 lace's Keports. 



" Sir, the Senator might have spared the 

 Supreme Court his grave censure. Every prin- 

 ciple of law as to the power of Congress found 

 in 12 Wallace, upholding the constitutionality 

 of the legal-tender acts of 1862 and 1863, is to 

 be found in 4 Wheaton, in the case of McCul- 

 loch tw. The State of Maryland, enunciated by 

 Chief-Justice Marshall in 1819, now more than 

 sixty years ago. 



" All there is of the question of power is 

 stated on page 421 of 4 Wheaton : 



" We admit 



" Says Chief -Justice Marshall 

 " as all must admit, that the powers of the Govern- 

 ment are limited, and that its limits are not to be 

 transcended. But we think the sound construction 

 of the Constitution must allow to the national Legis- 

 lature that discretion, with respect to the means by 

 which the powers it confers are to be carried into exe- 

 cution, which will enable that body to perform the 

 high duties assigned to it in the manner most bene- 

 ficial to the people. Let the end be legitimate, let it 

 be within the scope of the Constitution, and all means 

 which are appropriate, which are plainly adapted to 

 that end, which are not prohibited, but consist with 

 the letter and spirit of the Constitution, are constitu- 

 tional. 



"Under the doctrine here laid down, the 

 issue of legal-tender notes in 1862 and 1863 

 was left by the Constitution to the discretion 

 of Congress, to be decided by that body in 

 view of all the facts then before it. This rul- 

 ing indeed makes the power of Congress de- 

 pend on a question of fact. 



"The Government in 1862 and 1863 was 

 striving to maintain its own existence. Was 

 that end legitimate and within the scope of the 

 Constitution ? It had to support great armies 

 in the field and equip fleets on the ocean to 

 injure self-preservation. Was the legal-tender 

 note currency an appropriate means of assist- 

 ance for that purpose ? Was it adapted to the 

 service it was expected to perform ? Was it a 

 necessary and proper means to a legitimate 

 end? If so, it was a constitutional currency 

 unless prohibited by the letter or the spirit of 

 the Constitution. It ia not pretended that 

 such a prohibition exists in terms. Is it pro- 

 hibited by the spirit of the Constitution, or by 

 any implication arising out of any of its pro- 

 visions? We are all familiar with the argu- 

 ment on this point. Because the Constitution 

 gives to Congress the power 'to coin money 

 and regulate the value thereof and of foreign 

 coins' it is insisted that the power to make 

 money out of anything that can not be actu- 



VOL. XXI. 11 A 



ally coined is excluded. But those who take 

 this position, and urge a technical construction, 

 can not themselves adhere to the term ' coin ' 

 without giving it an explanation which does 

 not appear in the Constitution. The Consti- 

 tution does not speak of the coinage of gold or 

 silver. All kinds of metals may be coined. 

 Iron, zinc, lead, and all other metallic sub- 

 stances might be used to comply with the mere 

 verbal phrase of the Constitution. Nor does 

 the Constitution expressly authorize Congress 

 to declare any kind of money, even gold and 

 silver, a legal tender. These facts show that 

 in order to restrict the term ' coin ' to the 

 precious metals, instead of allowing it to ap- 

 ply to all metals, and in order to give Congress 

 the power to declare them a legal tender, we 

 have to go outside of the express words of the 

 Constitution to obtain its meaning. 



"Nobody questions that so far as the coin- 

 age of metal money is concerned no other sub- 

 stances except gold and silver can be coined, 

 and yet the Constitution does not say so. No- 

 body questions that Congress can make gold 

 and silver a legal tender, and yet the Constitu- 

 tion is silent on that point. If, therefore, so 

 much of the power of Congress over the ques- 

 tion of money, on points where there has never 

 been any dispute, is derived from inferences 

 arising out of the Constitution, rather than 

 from expressions to be found in it, might we 

 not with safety apply the same rule to the 

 matter that is in controversy ? I do not be- 

 lieve that the power of Congress is exhausted 

 by the mere coinage of metallic money. Let 

 it be understood that all money is created by 

 law, and that all power to declare what shall 

 be money is vested in Congress. The Supreme 

 Court of the United States says : 



" If the power to declare what is money is not in 

 Congress, it ia annihilated. 



" It is expressly taken away from the States. 

 Section 10 of the first article of the Constitu- 

 tion provides that 



" No State shall enter into acy treaty, alliance, or 

 confederation ; grant letters of marque and reprisal ; 

 coin money : emit bills of credit ; make anything but 

 gold and silver coin a tender in payment of debts ; 

 pass any bill of attainder, ex post facto law, or law im- 

 pairing the obligation of contracts, or grant any title 

 of nobility. 



" This is a sweeping prohibition of the exer- 

 cise of power by the States. It is a total 

 negative, and, taken in connection with the 

 affirmative grant of power on this subject, it 

 demonstrates the original purpose to confer 

 upon Congress a full and complete power over 

 the currency of the people. There is one feat- 

 ure in this prohibitory clause of the Constitu- 

 tion more suggestive than any other. The 

 power to make anything but gold and silver a 

 legal tender in payment of debts is expressly 

 denied to the States, but not to Congress. The 

 subject was before the minds of the framers of 

 the Constitution ; they considered it ; and the 

 fact that they denied to the States, in express 



