472 



LAW, CONSTITUTIONAL. 



past or future debts. The court affirmed the 

 following principles : 



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. 



The words ' ' all laws necessary and proper for car- 

 rying 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 con- 

 sistent with the letter and spirit of the Constitution ; 

 laws really calculated to effect objects intrusted to the 

 Government. 



Among means appropriate, plainly adapted, not in- 

 consistent with the spirit of the Constitution, nor pro- 

 hibited 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 into 

 this description. 



The making of notes or bills of credit a legal tender 

 in payment of pre-existing debts is not a means appro- 

 priate, plainly adapted, or really calculated to carry 

 into effect aiiy express power vested in Congress, is 

 inconsistent with the spirit of the Constitution, and 

 is prohibited by the Constitution. 



This case was decided in conference, Nov. 27, 

 1869. The court then consisted of eight jus- 

 tices. The decision was concurred in by five 

 justices Chase, Nelson, Grier, Clifford, and 

 Field. Three dissented Swayne, Miller, and 

 Davis. The opinion, which was written by 

 Chief- Justice Chase, was announced from the 

 bench, Feb. 8, 1870. Justice Grier resigned 

 his seat Feb. 1, 1870, and on the 18th of that 

 month Justice Strong was appointed his suc- 

 cessor. On April 1 0, 1869, Congress had passed 

 an act, to take effect in December following, 

 increasing the number of justices from eight 

 to nine. Justice Bradley was appointed as the 

 additional member on March 21, 1870. 



Before the court as thus constituted the 

 question of the power of Congress to issue le- 

 gal-tender notes was again brought in the suits 

 of Knox against Lee, and Parker against Davis, 

 reported in vol. xii of Wallace's Reports, under 

 the title of "Legal-Tender Cases." The cases 

 were decided May 1, 1871, and the opinion 

 delivered Jan. 15, 1872. The court reversed 

 its decision in Hepburn against Griswold, and 

 held that Congress had constitutional power 

 to make United States notes a legal tender for 

 debts contracted both before and after the 

 passing of the acts. 



The opinion of the court was written by 

 Justice Strong, and concurred in by Justices 

 Swayne,, Miller, Davis, and Bradley. The mi- 

 nority in Hepburn against Griswold, re-enforced 

 by the two new justices, Strong and Bradley, 

 became the majority in the second case. Chief- 

 Justice Chase and Justices Nelson, Clifford, 

 and Field, who with Justice Grier had formed 

 the majority in the first case, became the minor- 

 ity in the second. 



The acts whose constitutionality the court 

 was then called upon to consider were passed 

 during the war. The opinion of the majority 

 laid great stress upon this fact, and the fact 

 that there was then a public exigency that 



does not exist in time of peace. It pointed 

 out that the legal-tender legislation was, in 

 the opinion of Congress and the executive de- 

 partment of the Government, a necessary war 

 measure and essential to the preservation of the 

 nation. Under these circumstances the majority 

 had no doubt that Congress had under the Con- 

 stitution an implied war power to issue the legal- 

 tender notes. But the Court seemed to imply 

 that in other times and other circumstances a dif- 

 ferent principle might govern. It said : " This 

 brings us to the inquiry whether they [these 

 acts] were, when enacted, appropriate instru- 

 mentalities for carrying into eifect or execut- 

 ing any of the known powers of Congress, or 

 of any department of the Government. Plainly, 

 to this inquiry, a consideration of the time 

 when they were enacted, and of the circum- 

 stances in which the Government stood, is im- 

 portant. It is not to be denied that acts may 

 be adapted to the exercise of lawful power, 

 and appropriate to it, in seasons of exigency, 

 which would be inappropriate at other times." 



This decision did not have the usual effect 

 of a judgment of a court of last resort that 

 is, of putting at rest the legal question in- 

 volved. By many public men it was regarded 

 as recognizing in Congress a vast power for 

 mischief, and by not a few constitutional law- 

 yers it was looked upon as an unsound inter- 

 pretation of the Constitution. The fact that 

 the Court had within a little more than a year 

 reversed its own decision in so important a 

 matter, that the reversal had been brought 

 about by the concurrence of the two new mem- 

 bers, that the judgment rested on a bare ma- 

 jority of one, and was vigorously opposed by 

 four of the nine justices these and other con- 

 siderations it was asserted naturally had the 

 effect of causing no little popular dissatisfac- 

 tion with the judgment, and lessening its 

 weight as an authority. Moreover, it was ar- 

 gued that what the Court had decided in the 

 second case, was the question as to the power 

 of Congress to issue legal-tender notes in time 

 of war, and as a war necessity. But as the 

 war began to recede into the past, the question 

 loomed up whether Congress had the same 

 power in time of peace, and this question 

 assumed practical importance when Congress 

 exercised the power by passing the act of 1878 

 providing for a re-issue of legal-tender notes. 



These considerations led to a movement to 

 bring the issue before the Supreme Court for a 

 third time, in the hope of securing a reversal 

 of the principle affirmed in the legal-tender 

 cases in 1871, and with the view of at least 

 finally settling the law one way or the other. 

 A proposition to prepare a test case was made 

 to Gen. Benjamin F. Butler, early in 1879, by 

 Hon. S. B. 'Chittenden, a Republican mem- 

 ber of Congress from the State of New York. 

 The proposition was accepted, and a suit was ac- 

 cordingly brought in the United States Circuit 

 Court for the Southern District of New York in 

 the name of Augustus D. Juilliard, a citizen of 



