Part 16 (1/2)

Views equally decisive have been expressed by this court in a case where the remarks were pertinent to the question presented for decision.

Certain questions were certified here which arose in the circuit court in the trial of an indictment in which the defendant was charged with having brought into the United States from a foreign place, with intent to pa.s.s, utter, publish, and sell certain false, forged, and counterfeit coins, made, forged, and counterfeited in the resemblance and similitude of the coins struck at the mint. Doubts were raised at the trial whether congress had the power to pa.s.s the law on which the indictment was founded. Objection was made that the acts charged were only a fraud in traffic, and, as such, were punishable, if at all, under the state law.

Responsive to that suggestion the court say that the provisions of the section ”appertain rather to the execution of an important trust invested by the const.i.tution, and to the obligation to fulfil that trust on the part of the government, namely, the trust and the duty of creating and maintaining _a uniform and pure metallic standard of value throughout the Union_; that the power of coining money and of regulating its value was delegated to congress by the const.i.tution for the very purpose of _creating and preserving the uniformity and purity of such a standard of value_, and on account of the impossibility which was foreseen of otherwise preventing the inequalities and the confusion necessarily incident to the different views of policy which in different communities would be brought to bear on this subject. The power to coin money being thus given to congress, founded on public necessity, it must carry with it the correlative power of protecting the creature and object of that power.” Appropriate suggestions follow as to the right of the government to adopt measures to exclude counterfeits and prevent the true coin from being subst.i.tuted by others of no intrinsic value, and the justice delivering the opinion then proceeds to say, that congress ”having emitted a circulating medium, _a standard of value indispensable for the purposes of the community_ and for the action of the government itself, the congress is accordingly authorized and bound in duty to prevent its debas.e.m.e.nt and expulsion and the destruction of the general confidence and convenience by the influx and subst.i.tution of a spurious coin in lieu of the const.i.tutional currency.”

Equally decisive views were expressed by the court six years earlier, in the case of _Gwin_ v. _Breedlove_, in which the opinion of the court was delivered by the late Mr. Justice Catron, than whom no justice who ever sat in the court was more opposed to the expression of an opinion on a point not involved in the record.

No state shall coin money, emit bills of credit, or make anything but gold and silver a tender in payment of debts. These prohibitions, said Mr. Justice Was.h.i.+ngton, a.s.sociated with the powers granted to congress to coin money and regulate the value thereof and foreign coin, most obviously const.i.tute members of the same family, being upon the same subject and governed by the same policy. This policy, said the learned justice, was to provide and fix a uniform standard of value throughout the United States, by which the commercial and other dealings between the citizens thereof, or between them and foreigners, as well as the moneyed transactions of the government, should be regulated. Language so well chosen and so explicit cannot be misunderstood, and the views expressed by Mr. Justice Johnson in the same case are even more decisive. He said the prohibition in the const.i.tution to make anything but gold or silver coin a tender in payment of debts is _express and universal_. The framers of the const.i.tution regarded it as an evil to be repelled without modification, and that they have therefore left nothing to be inferred or deduced from construction on the subject.

Recorded as those opinions have been for forty-five years, and never questioned, they are certainly ent.i.tled to much weight, especially as the principles which are there laid down were subsequently affirmed in two cases by the unanimous opinion of this court.

Strong support to the view here taken is also derived from the case of _Craig_ v. _Missouri_, last cited, in which the opinion was given by the chief justice. Loan certificates issued by the state were the consideration of the note in suit in that case, and the defence was that the certificates were bills of credit, and that the consideration of the note was illegal. Responsive to that defence the plaintiff insisted that the certificates were not bills of credit, because they had not been made a legal tender, to which the court replied, that the emission of bills of credit and the enactment of tender laws were distinct operations, independent of each other; that both were forbidden by the const.i.tution; that the evils of paper money did not result solely from the quality of its being made a tender in payment of debts; that that quality might be the _most pernicious_ one, but that it was not an essential quality of bills of credit nor the only mischief resulting from such emissions.

Remarks of the chief justice in the case of _Sturges_ v. _Crownins.h.i.+eld_ may also be referred to as even more explicit and decisive to the same conclusion than anything embodied in the other cases. He first describes, in vivid colors, the general distress which followed the war in which our independence was established. Paper money, he said, was issued, worthless lands and other property of no use to the creditor were made a tender in payment of debts, and the time of payment stipulated in the contract was extended by law. Mischief to such an extent was done, and so much more was apprehended, that general distrust prevailed, and all confidence between man and man was destroyed. Special reference was made to those grievances by the chief justice, because it was insisted that the prohibition to pa.s.s laws impairing the obligation of contracts ought to be confined by the court to matters of that description, but the court was of a different opinion, and held that the convention intended to establish a great principle, that contracts should be inviolable, that the provision was intended ”to prohibit the use of any means by which the same mischief might be produced.” He admitted that that provision was not intended to prevent the issue of paper money, as that evil was remedied and the practice prohibited by the clause forbidding the states to ”emit bills of credit,” inserted in the const.i.tution expressly for that purpose, and he also admitted that the prohibition to emit bills of credit was not intended to restrain the states from enabling debtors to discharge their debts by the tender of property of no real value to the creditor, ”because for that subject also particular provision is made” in the const.i.tution; but he added, ”NOTHING BUT GOLD AND SILVER COIN CAN BE MADE A TENDER IN PAYMENT OF DEBTS.”

Utterances of the kind are found throughout the reported decisions of this court, but there is not a sentence or word to be found within those volumes, from the organization of the court to the pa.s.sage of the acts of congress in question, to support the opposite theory.

Power, as before remarked, was vested in the congress under the confederation to borrow money and emit bills of credit, and history shows that the power to emit such bills had been exercised, before the convention which framed the const.i.tution a.s.sembled, to an amount exceeding $350,000,000. Still the draft of the const.i.tution, as reported, contained the words, ”and to emit bills,” appended to the clause authorizing congress to borrow money. When that clause was reached, says Mr. Martin, a motion was made to strike out the words, ”to emit _bills of credit_;” and his account of what followed affords the most persuasive and convincing evidence that the convention, and nearly every member of it, intended to put an end to the exercise of such a power. Against the motion, he says, we urged that it would be improper to deprive the congress of that power; that it would be a novelty unprecedented to establish a government which should not have such authority; that it was impossible to look forward into futurity so far as to decide that events might not happen that would render the exercise of such a power absolutely necessary, &c. But a majority of the convention, he said, being wise beyond every event, and being willing to risk any political evil rather than admit the idea of a paper emission _in any possible case_, refused to trust the authority to a government to which they were lavis.h.i.+ng the most unlimited powers of taxation, and to the mercy of which they were willing blindly to trust the liberty and property of the citizens of every state in the Union, _and ”they erased that clause from the system_.”

More forcible vindication of the action of the convention could hardly be made than is expressed in the language of the Federalist, and the authority of Judge Story warrants the statement that the language there employed is ”justified by almost every contemporary writer,” and is ”attested in its truth by facts” beyond the influence of every attempt at contradiction. Having adverted to those facts, the commentator proceeds to say, ”that the same reasons which show the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to subst.i.tute a paper medium instead of coin.”

Emissions of the kind were not declared by the Continental congress to be a legal tender, but congress pa.s.sed a resolution declaring that they ought to be a tender in payment of all private and public debts, and that a refusal to receive the tender ought to be an extinguishment of the debt, and recommended the states to pa.s.s such laws. They even went further, and declared that whoever should refuse to receive the paper as gold or silver should be deemed an enemy to the public liberty; but our commentator says that these measures of violence and terror, so far from aiding the circulation of the paper, led on to still further depreciation. New emissions followed and new measures were adopted to give the paper credit by pledging the public faith for its redemption.

Effort followed effort in that direction, until the idea of redemption at par was abandoned. Forty for one was offered, and the states were required to report the bills under that regulation, but few of the old bills were ever reported, and of course few only of the contemplated new notes were issued, and the bills in a brief period ceased to circulate, and in the course of that year quietly died in the hands of their possessors.

Bills of credit were made a tender by the states, but all such, as well as those issued by the congress, were dead in the hands of their possessors before the convention a.s.sembled to frame the const.i.tution.

Intelligent and impartial belief in the theory that such men, so instructed, in framing a government for their posterity as well as for themselves, would deliberately vest such a power, either in congress or the states, as a part of their perpetual system, can never in my judgment be secured in the face of the recorded evidences to the contrary which the political and judicial history of our country affords. Such evidence, so persuasive and convincing as it is, must ultimately bring all to the conclusion that neither the congress nor the states can make anything but gold or silver coin a tender in payment of debts.

Exclusive power to coin money is certainly vested in congress, but ”no amount of reasoning can show that executing a promissory note and ordering it to be taken in payment of public and private debts is a species of coining money.”

Complete refutation of such theory is also found in the dissenting opinion in the former case, in which the justice who delivered the opinion states that he is not able to deduce the power to pa.s.s the laws in question from that clause of the const.i.tution, and in which he admits, without qualification, that the provision making such notes a legal tender does undoubtedly impair the ”obligation of contracts made before its pa.s.sage.” Extended argument, therefore, to show that the acts in question impair the obligation of contracts made before their pa.s.sage is unnecessary, but the admission stops short of the whole truth, as it leaves the implication to be drawn that the obligation of subsequent contracts is not impaired by such legislation. Contracts for the payment of money, whether made before or after the pa.s.sage of such a provision, are contracts, if the promise is expressed in dollars, to pay the specified amount in the money recognized and established by the const.i.tution as the standard of value, and any act of congress which in theory compels the creditor to accept paper emissions, instead of the money so recognized and established, impairs the obligation of such a contract, no matter whether the contract was made before or after the act compelling the creditor to accept such payment, as the const.i.tution in that respect is a part of the contract, and by its terms ent.i.tles the creditor to demand payment in the medium which the const.i.tution recognizes and establishes as the standard of value.

Evidently the word dollar, as employed in the const.i.tution, means the money recognized and established in the express power vested in congress to coin money, regulate the value thereof and of foreign coin, the framers of the const.i.tution having borrowed and adopted the word as used by the Continental congress in the ordinance of the 6th of July, 1785, and of the 8th August, 1786, in which it was enacted that the money unit of the United States should be ”one dollar,” and that the money of account should be dollars and fractions of dollars, as subsequently provided in the ordinance establis.h.i.+ng a mint.

Repeated decisions of this court, of recent date, have established the rule that contracts to pay coined dollars can only be satisfied by the payment of such money, which is precisely equivalent to a decision that such notes as those described in the acts of congress in question are not the money recognized and established by the const.i.tution as the standard of value, as the money so recognized and established, if the contract is expressed in dollars, will satisfy any and every contract between party and party. Beyond all question the cases cited recognize ”the fact accepted by all men throughout the world, that value is inherent in the precious metals; that gold and silver are in themselves values, and being such, and being in other respects best adapted to the purpose, are _the only proper measures of value_; that these values are determined by weight and purity, and that form and impress are simply certificates of value, worthy of absolute reliance only because of the known integrity and good faith of the government which” put them in circulation.

When the intent of the parties as to the medium of payment is clearly expressed in a contract, the court decide, in _Butler_ v. _Horwitz_, above cited, that damages for the breach of it, whether made before or since the enactment of these laws, may be properly a.s.sessed so as to give effect to that intent, and no doubt is entertained that that rule is correct. Parties may contract to accept payment in treasury notes, or specific articles, or in bank bills, and if they do so they are bound to accept the medium for which they contracted, provided the notes, specific articles, or bills are tendered on the day the payment under the contract becomes due, and it is clear that such a tender, if seasonable and sufficient in amount, is a good defence to the action.

Decided cases also carry the doctrine much further, and hold, even where the contract is payable in money and the promise is expressed in dollars, that a tender of bank bills is a good tender if the party to whom it was made placed his objections to receiving it wholly upon the ground that the amount was not sufficient.

Grant all that, and still it is clear that where the contract is for the payment of a certain sum of money, and the promise is expressed in dollars, or in coined dollars, the promisee, if he sees fit, may lawfully refuse to accept payment in any other medium than gold and silver, made a legal tender by act of congress pa.s.sed in pursuance of that provision of the const.i.tution which vests in congress the power to coin money, regulate the value thereof and of foreign coin.

Foreign coin of gold and silver may be made a legal tender, as the power to regulate the value thereof is vested in congress as well as the power to regulate the value of the coins fabricated and stamped at the mint.

Opposed, as the new theory is, by such a body of evidence, covering the whole period of our const.i.tutional history, all tending to the opposite conclusion, and unsupported as the theory is by a single historical fact, ent.i.tled to any weight, it would seem that the advocates of the theory ought to be able to give it a fixed domicile in the const.i.tution, or else be willing to abandon it as a theory without any solid const.i.tutional foundation. Vagrancy in that behalf, if conceded, is certainly a very strong argument at this day, that the power does not reside in the const.i.tution at all, as if the fact were otherwise, the period of eighty-five years which has elapsed since the const.i.tution was adopted is surely long enough to have enabled its advocates to discover its locality and to be able to point out its home to those whose researches have been less successful and whose conscientious convictions lead them to the conclusion that, as applied to the const.i.tution, it is a myth without a habitation or a name.

Unless the power to enact such a provision can be referred to some one or more of the express grants of power to congress, as the requisite means, or as necessary and proper for carrying such express power or powers into execution, it is usually conceded that the provision must be regarded as unconst.i.tutional, as it is not pretended that the const.i.tution contains any express grant of power authorizing such legislation. Powers not granted cannot be exercised by congress, and certainly all must agree that no powers are granted except what are expressed or such as are fairly applicable as requisite means to attain the end of a power which is granted, or, in other words, are necessary and proper to carry those which are expressed into execution.

Pressed by these irrepealable rules of construction, as applied to the const.i.tution, those who maintain the affirmative of the question under discussion are forced to submit a specification. Courts, in one or more cases, have intimated that the power in question may be implied from the express power to coin money, but inasmuch as no decided case is referred to where the judgment of the court rests upon that ground, the suggestion will be dismissed without further consideration, as one involving a proposition too lat.i.tudinous to require refutation. Most of the cases referred to attempt to deduce the power to make such paper emissions a legal tender from the express power to borrow money, or from the power to declare war, or from the two combined, as in the dissenting opinion in the case which is now overruled.

Authority, it is conceded, exists in congress to pa.s.s laws providing for the issue of treasury notes, based on the national credit, as necessary and proper means for fulfilling the end of the express power to borrow money, nor can it be doubted at this day, that such notes, when issued by the proper authority, may lawfully circulate as credit currency, and that they may, in that conventional character, be lawfully employed, if the act authorizing their issue so provides, to pay duties, taxes, and all the public exactions required to be paid into the national treasury.