162 



CONGRESS, UXITED STATES. 



words, the power to make paper money a 

 legal tender, and were totally silent as to the 

 power of Congress on that subject, is a strong 

 implication in favor of that power in Congress. 

 This implication is greatly strengthened, too, 

 when we reflect that the power of Congress to 

 make gold and silver a legal tender in pay- 

 ment of debts is also an implied power, and 

 not an express grant. If it was the intention 

 of the framers of the Constitution that Con- 

 gress should not have the power to make any- 

 thing but the precious metals a legal tender, 

 how easily, how certainly, how inevitably 

 would they have inserted such a provision 

 when they were treating of that very question ! 

 "Would they have used express language in 

 order to deprive the States of this power, 

 while Congress, to whom every vestige of 

 power over money was transferred, was left 

 untrammeled, unless it was their design to per- 

 mit Congress a discretion on the subject? If 

 it is said that this is a Government of dele- 

 gated powers, and that while the power to 

 make anything but gold and silver a legal ten- 

 der was prohibited to the States, yet it was 

 not delegated to the United States, the answer 

 is, that neither was the power to make gold 

 and silver a legal tender expressly delegated to 

 the United States. So that if by reason of its 

 full general control of the question of money 

 Congress derives a power, unexpressed in the 

 Constitution, to declare what shall be a legal 

 tender in the payment of debts, what is there 

 to confine it merely to the precious metals? 

 On this point the reasoning of the Supreme 

 Court, to my mind, is just and unanswerable. 

 It is found on page 546 of 12 Wallace, and is 

 as follows : 



" Why, then, it may be asked, if the design was to 

 prohibit to the new 'Government, as well as to the 

 States, that general power over the currency which 

 the States had when the Constitution was framed, was 

 such denial not expressly extended to the new Gov- 

 ernment as it was to the States ? In view of this it 

 might be argued with much force that when it is con- 

 sidered in what brief and comprehensive terms the 

 Constitution speaks, how sensible its framers must 

 have been that emergencies might arise when the 

 precious metals (then more scarce than now) might 

 prove inadequate to the necessities of the Govern- 

 ment, and the demands of the people ; when it is re- 

 membered that paper money was almost exclusively 

 in use in the States as the medium of exchange, and 

 when the great evil sought to be remedied was the 

 want of uniformity in the current value of money, it 

 might be argued, we say, that the gift of power to 

 coin money and regulate the value thereof was under- 

 stood as conveying general power over the currency, 

 the power which had belonged to the States and 

 which they surrendered. Such a construction, it 

 might be said, would be in close analogy to the mode 

 of construing other substantive powers granted to 

 Congress. They have never been construed literally, 

 and the Government could not exist if they were. 

 Thus the power to carry on war is conferred by the 

 power to declare war. The whole system of the trans- 

 portation of the mails is built upon the power to es- 

 tablish post-offices and post-roads. The power to 

 regulate commerce has also been extended far" beyond 

 the letter of the grant. Even the advocates of a strict 

 literary construction of the phrase ' to coin money 

 and regulate the value thereof,' while insisting that it 



defines the material to be coined as metal, are com- 

 pelled to concede to Congress large discretion in all 

 other particulars. The Constitution does not ordain 

 what metals may be coined, or prescribe that the legal 

 value of the metals when coined shall correspond at 

 all with their intrinsic value in the market, nor does 

 it even affirm that Congress may declare anything to 

 be a legal tender for the payment of debts. Con- 

 fessedly the power to regulate the value of money 

 coined, and of foreign coins, is not exhausted by the 

 first regulation. More than once in our hi.-tory has 

 the regulation been changed without any denial of the 

 power of Congress to change it, and it seems to have 

 been left to Congress to determine alike what metal 

 shall be coined, its purity, and how far its statutory 

 value as money shall correspond from time to time 

 with the market value of the same metal as bullion. 

 How, then, can the grant of a power to coin money 

 and regulate its value, made in terms so liberal and 

 unrestrained, coupled also with a denial to the States 

 of all power over the currency, be regarded as implied 

 prohibition to Congress against declaring Treasury 

 notes a legal tender, if such declaration is appropriate 

 and adapted to carrying into execution the admitted 

 powers of the Government ? 



" But it has been strenuously insisted on this 

 floor that the obligation of contracts was im- 

 paired by the passage of the legal tender acts, 

 as they are known, of 1862 and 1863. Even if 

 this position could be sustained, it is not clear 

 that it would render them unconstitutional. 

 The States are prohibited from making any 

 ' law impairing the obligation of contracts.' 

 Is that true, however, as to Congress? We 

 do not find it so in the language of the Con- 

 stitution ; neither do we find it in the practices 

 of the Government. What is a general bank- 

 rupt law except a provision by which con- 

 tracts may not only be impaired but abrogated, 

 totally destroyed ? A bankrupt law applies to 

 all contracts, past and future, and provides 

 legal methods for their entire obliteration. It 

 may be said that the power is expressly granted 

 in the fourth clause of section 8, Article I of 

 the Constitution to enact a general bankrupt 

 law. That is true ; but if Congress is prohibit- 

 ed from impairing, under any circumstances, 

 the validity of contracts, how can two such 

 antagonistic principles stand together in the 

 same instrument? Congress can declare war, 

 before whose blasts contracts are withered and 

 blown away. Congress can pass non- inter- 

 course acts, and enforce embargoes by which 

 contracts may be hindered, impaired, and an- 

 nulled. But I am very far from admitting that 

 the legal-tender acts do impair the obligation 

 of contracts, whatever the power of Congress 

 may be on that subject. The argument on 

 this point, however, can of course apply only 

 to contracts made prior to February, 1862. 

 All contracts made since the passage of the 

 first legal-tender act have been made with 

 reference to the existence of the legal-tender 

 note currency. 



" The complaint in regard to contracts prior 

 to February, 1862, is that a man who owed a 

 debt at that time might afterward pay it in 

 legal-tender notes, or greenbacks, as they are 

 popularly styled, and that his creditor had to 

 take them. Was this an impairment of an or- 



