CONGRESS, UNITED STATES. 



163 





dinary contract to pay money, in which there 

 was no mention of any special kind of money, 

 and in the discharge of which both parties 

 simply contemplated the use of the lawful 

 money of the country? I say it was not. 

 Numerous decisions of the Supreme Court of 

 our own country, and of the highest courts of all 

 other civilized countries, might he cited to show 

 that ' the obligation of a contract to pay money 

 is to pay that which the law shall recognize 

 as money when the payment is to be made.' 

 Every contract is made subject to the power 

 of the Government to enact new laws and to 

 repeal old ones. All human conduct is gov- 

 erned by the same rule. We all take the risk 

 of not only what the law now is, hut of what 

 it hereafter may be. This is a risk which 

 every citizen shares at every step and on every 

 conceivable subject. The legal-tender acts are 

 not the only financial hazards the American 

 people have encountered in the way of a 

 change of laws. The acts of Congress regu- 

 lating the coinage of gold and silver have been 

 repeatedly altered and amended. The number 

 of grains of gold in the gold eagle was reduced 

 C per cent in 1834, without changing its legal- 

 tender value. The same thing has been done 

 more than once with silver coin, and it has 

 never been contended that such legislation im- 

 paired the obligation of contracts. The posi- 

 tion assumed by the Supreme Court on this 

 point is the only one which can be upheld. It 

 is stated on page 548 of 19 Wallace, as follows : 



" It is true that under the acts a debtor, who be- 

 came such before they were passed, may discharge 

 his debt with the notes authorized by them, and the 

 creditor is compelled to receive such notes in discharge 

 of his claim. But whether the obligation of the con- 

 tract is thereby weakened can be determined only 

 alter considering what was the contract obligation. 

 It was not a duty to pay gold, or silver, or the kind 

 of money recognized by' law at the time when the con- 

 tract \va^ made, nor was it a duty to pay money of 

 equal intrinsic value in the market. (We speak now 

 of contracts to pay money generally, not contracts to 

 pay some specineally-denned species of money. ) The 

 expectation of the creditor and the anticipation of the 

 debtor may have been that the contract would be dis- 

 charged by the payment of coined metals, but neither 

 the expectation of one party to the contract respecting 

 its fruits, nor the anticipation of the other, constitutes 

 its obligation. There is a well-recognized distinction 

 between the expectation of the parties to a contract 

 and the duty imposed by it. (Speden vs. Austin, 5 

 Adolphus and Ellis, N. S., 671 : Dunn vs. Sayles, 

 Fnd., 685 ; Coffin vs. Landis, 10 Wright, 426.) Were 

 it not so, the expectation of results would be always 

 equivalent to a binding engagement that they should 

 follow. But the obligation of a contract to pay money 

 is to pay that which the law shall recognize as money 

 when the payment is to be made. If there is anything 

 settled by decision it is this, and we do not under- 

 stand it to be controverted. (Davies, 28 : Barrington 

 vs. Potter, Dyer 81, b. fol. 67 ; Faw -vs. Marsteller, 2 

 Cranch, 29.) No one ever doubted that a debt of 

 $1,000 contracted before 1834 could be paid by one 

 hundred eagles comed after that year, though they 

 contained no more gold than ninety-four eagles such 

 as were coined when the contract was made ; and this, 

 not because of the intrinsic value of the coin, but be- 

 cause of its legal value. The eagles coined after 1834 

 were not money until they were authorized by law ; 

 and had they been coined before without a law fixing 



their legal value, they could no more have paid a debt 

 than uncoined bullion, or cotton, or wheat. Every 

 contract for the payment of money simply is necessa- 

 rily subject to the constitutional power of the Govern- 

 ment over the currency, whatever that power may be, 

 and the obligation of the parties is therefore assumed 

 with reference to that power. 



" In the discussion of this great question, how- 

 ever, we have always heard much stress laid 

 on what have been termed the ' war powers ' 

 of tne Constitution. There are those who, ! 

 while admitting that Congress has the power 

 to make legal-tender notes, still insist that such 

 power only exists during war. They hold that 

 a state of war gives rise to a power in the Con- 

 stitution, and confers it upon Congress, over 

 the currency of the country, which has no ex- 

 istence in time of peace. It is certainly true 

 that great war powers belong to this Govern- 

 ment. But is the power on the part of Con- 

 gress to create a legal-tender note circulation 

 for the people one of them ? That is the plain 

 question. The powers of Congress on the sub- 

 ject of war are specifically named in the Con- 

 stitution. It may be profitable to read them. 



" To declare war, grant letters of marque and re- 

 prisal, and make rules concerning captures on land 

 and water ; 



" To raise and support armies, but no appropriation 

 of money to that use shall be for a longer term than 

 two years ; 



" To provide and maintain a navy ; 



" To make rules for the Government and regulation 

 of the knd and naval forces ; 



" To provide for calling forth the militia to execute 

 the laws of the Union, suppress insurrection, and re- 

 pel invasions ; 



" To provide for organizing, arming, and disciplin- 

 ing the militia, and for governing such part of them 

 as may be employed in the service of the United 

 States, reserving to the States, respectively, the ap- 

 pointment of the officers, and the authority of train- 

 ing the militia according to the discipline prescribed 

 by Congress. 



" Sir, if the power of Congress, or any part 

 of it, over the currency is derived from the 

 grants of the Constitution in relation to war, 

 it must bo found somewhere in the clauses 

 which I have just read. They contain all the 

 power which has been given to Congress on 

 the subject of war. Those who contend that 

 the legal-tender notes are constitutional in war, 

 but not in peace, claim that their argument is 

 sustained by the two clauses just quoted : 



" To raise and support armies, but no appropriation 

 of money to that use shall be for a longer term than 

 two years ; 



" To provide and maintain a navy. 



*' They contend that the power to raise and 

 support armies and to provide and maintain a 

 navy implies the power to resort to an issue of 

 legal-tender notes if necessary. It is clear to 

 my mind that in these clauses the framers of 

 the Constitution were providing a power in 

 Congress for the appropriation of money for 

 the support of our military and naval forces 

 rather than for a power to create money to he 

 appropriated. The same sentence which pro- 

 vides for raising and supporting armies treats 



