474 



LAW, CONSTITUTIONAL. 



obligations of the United States in such form, and to 

 impress upon them such qualities as currency for the 

 purchase of merchandise and the payment of debts, as 

 accord with the usage of sovereign governments. The 

 power, as incident to the power of borrowing money 

 and issuing bills or notes of the Government for money 

 borrowed, of impressing upon those bills or notes the 

 quality of being a legal tender for the payment of pri- 

 vate debts, was a power universally understood to De- 

 long to sovereignty, in Europe and America, at the 

 time of the framing and adoption of the Constitution 

 of the United States. The governments of Europe, 

 acting through the monarch or the legislature, accord- 

 ing to the distribution of powers under their respect- 

 ive constitutions, had and have as sovereign a power 

 of issuing paper money as of stamping coin. 



The power of issuing bills of credit, and making 

 them, at the discretion of the legislature, a tender in 

 payment of private debts, had long been exercised in 

 this country by the several colonies and States ; and 

 during the Revolutionary War the States, upon the 

 recommendation of the Congress of the Confederation, 

 had made the bills issued by Congress a legal tender. 

 The exercise of this power not being prohibited to 

 Congress by the Constitution, it is included in the 

 power expressly granted to borrow money on the credit 

 of the United States. 



This position is fortified by the fact that Congress 

 is vested with the exclusive exercise of the analogous 

 power of coining money and regulating the value of 

 domestic and foreign coin, and also with the paramount 

 power of regulating foreign and interstate commerce. 

 Under the power to borrow money on the credit of the 

 United States, and to issue circulating notes ^for the 

 money borrowed, its power to define the quality and 

 force of these notes as currency is as broad as the like 

 power over a metallic currency under the power to 

 coin money and to regulate the value thereof Under 

 the two powers, taken together, Congress is authorized 

 to establish a national currency, either in coin or in 

 paper, and to make that currency lawful money for all 

 purposes, as regards the national Government or pri- 

 vate individuals. 



The power of making the notes of the United States 

 a legal tender in payment of private debts, being in- 

 cluded in the power to borrow money and to provide 

 a national currency, is not defeated or restricted by 

 the fact that its exercise may affect the value of private 

 contracts. If, upon a just and fair interpretation of 

 the whole Constitution, a particular power or authority 

 appears to be vested in Congress, it is no constitutional 

 objection to its existence or to its exercise that the 

 property or the contracts of individuals may be inci- 

 dentally aft'ected. The decisions of this Court already 

 cited afford several examples of this. 



Congress, as the legislature of a sovereign nation, 

 being "expressly empowered by the Constitution " to 

 lay and collect taxes, to pay the debts and provide for 

 the common defense and general welfare or the United 

 States," and " to borrow money on the credit of the 

 United States," and " coin money and regulate the 

 value thereof and of foreign coin " ; and being clearly 

 authorized, as incidental to the exercise of those great 



C r ers, to emit bills of credit, to charter national 

 ks, and to provide a national currency for the 

 whole people, in the form of coin, treasury notes, and 

 national-bank bills ; and the power to make the notes 

 of the Government a legal tender in payment of pri- 

 vate debts being one of the powers belonging to sov- 

 ereignty in other civilized nations, and not expressly 

 withheld from Congress by the Constitution we are 

 irresistibly impelled to the conclusion that the im- 

 pressing upon the treasury notes of the United States 

 the quality of being a legal tender in payment of pri- 

 vate debts is an appropriate means, conducive and 

 plainly adapted to the execution of the undoubted 

 powers of Congress, consistent with the letter and 

 spirit of the Constitution, and. therefore, within the 

 meaning of that instrument, " necessary and proper 

 for carrying into execution the powers vested by 



this Constitution in the Government of the United 

 States." 



Such being our conclusion in matter of law, the 

 question whether at any particular tune, in war or in 

 peace, the exigency is such, by reason ol unusual and 

 pressing demands on the resources of the Government 

 or of the inadequacy of the supply of g^old and silver 

 coin to furnish the currency needed for the uses of 

 the Government and of the people, that it is, as a mat- 

 ter of fact, wise and expedient to resort to this means, 

 is a political question to be determined by Congress 



question to be afterward passed upon by the courts. 

 To quote once more from the judgment in McCulloch 

 vs. Maryland : " Where the law is not prohibited, and 

 is really calculated to effect any of the objects intrusted 

 to the Government, to undertake here to inquire into 

 the degree of its necessity would be to pass the line 

 which circumscribes the judicial department and to 

 tread on legislative ground." (Vol. iv, Wheaton's 

 Keports, p. 423.) 



Of the eight justices who concurred in the 

 judgment of the Court, Justice Miller took part 

 in the two former decisions of this question, 

 dissenting from the opinion of the majority in 

 Hepburn against Griswold, which denied to 

 Congress the power to issue legal-tender notes, 

 and agreeing with the majority in Legal- 

 Tender Cases that Congress has such power. 

 Justice Bradley was not a member of the court 

 when Hepburn against Griswold was decided ; 

 he was one of the majority in Legal-Tender 

 Cases. The other six justices Waite, Harlan, 

 Woods, Matthews, Gray, and Blatchford who 

 concur in the opinion of the Court in Juilliard 

 against Greenman, have come upon the bench 

 since the second of the two former cases was 

 decided. Justice Field has taken part in the 

 decision of all three cases, and in the latest one 

 delivered an elaborate dissenting opinion, ad- 

 hering to the same principles maintained by 

 him in the other two, namely, that Congress 

 has no constitutional power to make United 

 States notes a legal tender. 



On March 10, 1884, propositions to amend 

 the Constitution were brought forward as fol- 

 lows: by Senator Bayard, of Delaware, and 

 by Representatives Hewitt and Potter, of New 

 York, that Congress shall not have power to 

 make anything but gold and silver coin a legal 

 tender for the payment of debts Mr. Potter's 

 containing the proviso, " except after a decla- 

 ration of war, when the public safety may re- 

 quire it"; by Senator Garland, of Arkansas, 

 that the legal-tender notes issued by Congress 

 shall never exceed $350,000,000, except by a 

 two-third vote of each branch. 



Power of Congress touching Elections. An im- 

 portant opinion on this subject was rendered 

 by the United States Supreme Court on March 

 3, 1884. The question was -raised in what are 

 known as the " Georgia Ku-klux cases," on 

 petitions for writs of habeas corpus to release 

 a number of persons convicted in the Federal 

 Circuit Court for the Northern District of 

 Georgia on the charge of threatening, beat- 

 ing, arid otherwise intimidating colored voters 

 at an election in that State for a member of 

 Congress. The offense set forth in the indict- 



