Griswold v. Hepburn

63 Ky. 20, 2 Duv. 20, 1865 Ky. LEXIS 6

• Court: Court of Appeals of Kentucky
• Decided: June 17, 1865
• Status: Published

Opinions

JUDGE ROBERTSON

delivered the opinion on the codrt — JUDGE WILLIAMS DissEnuna:

The only question involved in this appeal is the constitutional validity of so much of the congressional statute of the 25th of February, 1862, as enacted that “ United States treasury notes (authorized by it) shall also he lawful money, and a legal tender in payment of all debts, public and private, in the United States.”

A solution of the grave and apparently difficult problem now, for the first time, presented for the consideration of this court, has been attempted by several of the State tribunal's,, whose opinions have been various in reasons, and, to. some extent, conflicting in conclusion. And, as the great controversy, thus far presenting such manifold phases, can be finally concluded only by the judicial organ of all' the people of all the States, and as, therefore, no transient opinion of the appellate court of Kentucky can ultimately have any authoritative effect, we had hoped that we might b.e spared the peculiar responsibilities- of announcing our own judicial conclusion on a subject as important to constitutional liberty and union as any ever presented to the American judiciary.. But neither duty nor propriety will permit evasion or longer delay. And now, in- reluctantly approaching a question of so much magnitude in principle and so momentous in its bearing on the consistency, stability, and practical supremacy of the Federal Constitution, our only fear is, that we may not be able to divest our judicial minds of all extraneous influence, and, with perfect impartiality, looking to the Constitution and its historic interpretation alone, expound it truly for-the welfare of the country and the security of posterity.

The political mechanism- of the United States i-s a simple dualism, consisting of separate State governments for all-local concerns, and a common government for all national affairs. . -

The Constitution of the United States defines- the spheres, of each of these forms of' government; and, in it, the people of the States, who, as pre-existing sovereignties, made it, reserved to themselves all- powers not transferred by it, and declared that, in the ultimate ■ sense, it shall be the supreme law of the land. As thus defined, each State g-overnment possesses the inherent sovereignty of its local constituency, modified by the delegation of all national power to the general. government, and by the limitations of their common Constitution.. Our unique system — Federo-national—is, therefore, appropriately styled '■'■Imperium in Imperio,” and theoretically resembles the simplicity "and harmony of the solar system, whose separate planets revolve in their own distinct orbits around their own central sun.

This new and beautiful organism is yet in the course of practical development, which may soon prove whether its fundamental equilibrium of local and national power is in most danger of disturbance from the centrifugal tendencies of the States, or the centripetal attractions of the central government. To preserve the constitutional balance, hitherto deemed indispensable to union and security, each government must, as their organic law contemplates and enjoins, confine its action within its own allotted sphere, and never cross the boundary line of their respective powers. Their common judiciary is their organic guardian of that sacred line, and no human tribunal was ever endowed with a higher power, or intrusted with a more responsible duty. Tranquility and fraternity demand that the general government especially should carefully abstain from the assumption of undelegated power, and the exercise of. even a doubtful power which might jeopard the reserved rights of the States. And, consequently, as it is the duty of the Judiciary to pronounce the law in every judicial case, and as no act of Congress, not authorized by the Constitution, can be law, fidelity to official trust requires every court to adjudge any such act unconstitutional and void, and even to withhold its sanction and co-operation in every obscure case, unless it can see some satisfactory reason for admitting the constitutionality of the questionable act. When twilight vexatiously obscures the boundary between national and State power, there may be imminent danger, and especially in seasons of tempting disturbances by war or otherwise, of encroachment on the reserved rights of the States, whereby our Federal system might be dislocated, and its harmony, so essential to union, might be destroyed. To prevent such a national catastrophe, the judiciary should be slow to enforce an adventurous act pregnant with so much peril, and of such doubtful authority. But the same reason being inapplicable to State legislation of doubtful compatibility with a State Constitution, propel* deference to the legislative department should preponderate in favor of the constitutionality of its acts, and require the judicial department to recognize them as laws, unless it shall be clearly satisfied that they are not.

Whenever a jurist inquires whether a State statute is consistent with the State Constitution, he looks into that Constitution, not for a grant, but only for some limitation of the power inherent in the people’s legislative organ so far as not forbidden by their organic law.

But, as Congress derives its power from grants by the people of pre-existent State sovereignties, an enlightened inquirer into the constitutionality of any of its acts, looks only for a delegation of power by the Federal Constitution; for that Constitution expressly declares that all power not delegated by it, is reserved to the States or to the people, In this class of cases, therefore, he who asserts the power holds the affirmative, and, unless he “ maintains it,” the controverted act should not be enforced as law by the judiciary. On the contrary, the party affirming that a legislative act of a State is prohibited by the State Constitution, must prove it, and, unless the proof be clear, the contested act must be admitted to be law. The distinctive difference between the two classes of cases is, that, in the former, the power must be shown to have been delegated; but, in the latter, it must appear to have been prohibited.

And, in this case, therefore, the power to pass the tender act must satisfactorily appear to have been delegated before the judiciary should recognize and enforce it.

But express power to attain a designated end or fulfill a specific trust, necessarity implies the subsidiary power to employ the means necessary for effectuating the contemplated end, excepting only so far as a particular mean may be inconsistent with the charter of authority. And this clear principle of philosophy — applicable to political as well as to personal trusts — is expressly recognized and confirmed by that provision of the Federal Constitution which, immediately succeeding the enumerated powers, declares that Congress shall have power “ to make all laws which shall be necessary and proper for carrying into execution the foregoing power.”

To avoid controversy or doubt this clause was adopted, not as a grant, but only as an authoritative recognition of the necessary existence and true range of incidental powers too numerous and various for specific enumeration; and, consequently, this fundamental declaration neither enlarges nor contracts the specific powers expressly granted, but only certifies and defines the natural and necessary sphere of implied powers, which are as much delegated as the express powers to which they are properly subservient — as means to ends. These means must be both “ necessary and proper.” And what are such means may, in nearly all instances, be freed from rational doubt by a logical test consistently applied.

Indispensable is neither the popular nor the constitutional sense of the simple word “ necessary.” No one mean can be indispensable if any other mean could attain the same end; and therefore there could be no implied power in any case if none but indispensable means were constitutional. But all means relating to the end of any express power, and conducive to the execution of it, are, in the constitutional sense, “ necessary means.” And, among all such adaptable means, Congress may choose any one which, in the exercise of a sound discretion, it may deem most befitting. Over that choice — whether wise or unwise, politic or impolitic — the judiciary has no jurisdiction. Its revisory cognizance is confined to questions of power, and can never, without usurpation, be extended to questions of policy or expediency. And while, in this case, this court cannot consider the expediency or inexpediency of the tender act, it may and must decide whether it was an unprohibited mean adapted to the end of any express power.

“Proper” is neither synonymous with “necessary,” nor a superfluous addition to it, as it would be if it import merely fitting, or appropriate, or adaptable, which is the meaning of “necessary.” But, as a chosen mean may be prohibited by the letter or the spirit, and aim of the Constitution, however. adaptable, and, in that sense, “ necessary,” it cannot be “proper,” and, therefore, it must be adjudged unconstitutional, as being thus prohibited. The true test of implied power is, whether a preferred mean is adapted to the end of an express power, and is also unprohibited, or, in other words, is congenial with the spirit and purpose of the Constitution. This test constructively exeludes from “ necessary and proper means ” all power that is intrinsically substantive and independent, the non-delegation of which implied that the States and people intended to reserve it to themselves, or, in any event, to withhold it from Congress.

The incorporation of the national bank of 1816 raised this very question, in the great case of McCullough vs. Maryland, in which the supreme court of the United States decided that the bank incorporation was a necessary and proper mean to the end of safely keeping and transmitting the public money; and Chief Justice Marshall, considering the power to incorporate as not substantive and independent, but necessarily a mean only to the end of some such express powers, said: “ The power of creating a corporation, though appertaining to sovereignty, is not, like, the power of making war, or levying taxes, or regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers or used as means of executing them.” All such power is itself an end, and not a mean to the end of any express power, and therefore cannot be implied.

And truly, had no express power been granted to declare war, levy taxes, and regulate commerce, there could have been no implied power to do either of those things, but each of these independent powers would have been undoubtedly retained by the States, and, impliedly, forbidden to Congress. And what can be more substantive and independent than the most vital of all commercial powers — the power to make and regulate a nation’s money? This power is everywhere treated as one of the highest and most essential attributes of national sovereignty, and could not be admitted as an implied power in Congress, any more than the power to declare war or regulate commerce could be so held to be in the absence of any express power. And the power over tender is equally substantive,^?’ it may control and nullify the other.

The test of national power, as thus substantially defined, is established by reason, and still more authoritatively by the undeviating concurrence of the judiciary, both State and national; and it is the only safe or consistent criterion for an uniform and a stable construction of our national Constitution. Without its guide the charter of the Union, like a rudderless ship, would fluctuate between the Scylla of strict, and the Charybdis of latitudinarian, interpretation; and then, its essential end of certainty and uniformity being frustrated, it would become the victim of circumstances, and be often moulded by passion or policy. Expediency and power are too often confounded as synonymous. They are widely different. Expediency is uncertain — the Constitution certain. Expediency changes — -the Constitution never. Expediency bends to circumstances — the Constitution, exalted high above them by the people, never bows to men or times.

Constitutional discretion cannot do whatever may promote “ the general welfare.” Express power to promote the general welfare has not, eo nomine, been given; such specific power would have devoured all the other powers and resolved the national government into despotic anarchy.

The declared object of the express power to levy taxes was “ to provide for the common defense and general welfare,” which can only be done by the exercise of the delegated powers. The general welfare is not a power, but only the purpose of the constitutional exercise of the powers granted.

The fact that a measure may promote the general welfare neither proves, nor, per se, tends to prove, that Congress may enact it as law.

s Uniformity in the law of wills, conveyances, and other contracts, in all'the States, might, and probably would, tend to the general welfare; but the States chose to retain, each for herself, the power to regulate that matter in their own way. So, too, some of our wisest patriots think that the general welfare would be promoted by the abolishment of slavery; but surely Congress has no legislative power over that domestic institution in the States. Nor does the impolicy of a legislative act prove its unconstitutionality. Many enactments have been unwise, and nevertheless constitutional. Within the limits of the Constitution legislative discretion is law; but, beyond that conservative boundary, it is a lawless brutum fulrnen, totally destitute of authority.

The people of the States adopted their federal charter as moulded in such form and animated with such a spirit as they thought best for securing their common liberty and progress, and for saving themselves and posterity from the anarchy of vagrant legislation on the capricious plea of mere expediency and the general welfare; and, to secure that great end, the test just indicated must, always, inflexibly guide legislators and judges as the best and only safe cynosure of constructive power. That pole star will never decoy nor deceive. Guided by the chaste light of that lone star, we will proceed to analyze the power assumed to pass the legal tender act of February, 1862.

As every contract and every judgment for money will be legally discharged by the payment of money, just as every contract and judgment for any other thing will be discharged by a delivery of the thing itself, therefore, proprio vi, money will necessarily be a lawful tender, without any legislative enactment for legalizing it as such; consequently, if the currency called “United States treasury notes” can be legally held to be “ money,” as declared by the act of February, 1862, the further declaration, that it should be a legal tender in contracts and judgments for money, was an act of -supererogation; for being money makes them a legal tender without the superfluous enactment to the same effect; and, unless they constitute money, they are not a legal tender for money due, and no act of Congress can make them so, without impairing the obligation of contracts, and otherwise assuihing powers never delegated; and, seeming conscious that nothing but money could be made a tender for a debt due in money, Congress saw fit, as a necessary preliminary, to declare United States treasury notes “to be money.” Whether in the technical and constitutional sense of money that act made them money, is the radical question.

Money being the universal standard of value and measure of éxchange, foreign and domestic, to make and regulate money is, as before suggested, one of the highest and most essential attributes of national sovereignty; and the harmony and prosperity of the United States especially require that the legal currency should be the same in all the States, and be made as uniform and stable as possible. Being, therefore, a national concern of vital interest, the national will should exclusively control the money of the United States. The people of the old Confederate States, having learned this wholesome lesson by an afflictive experience, unanimously surrendered all State power over the currency, and magnanimously transferred it to the national Congress, to a prudently circumscribed extent, by the following provisions in the Federal Constitution they adopted: “ Congress shall have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures“No State shall coin money, emit bills of credit, make anything but gold and silver coin a tender in payment of debts U

If, as some few persons have argued, “ to coin money ” is a carte blanche allowing Congress to make or to declare anything money it may choose for the national currency, then there is express power to issue treasury notes, and declare them to be money, and, as a necessary sequence, a lawful tender. But this comprehensive construction is, in our judgment, unauthorized by the letter, and irreconcilable with the motives and the purpose of the quoted clauses.' “ To coin money ” clearly means to mould into form a metallic substance of inti’insic value, and stamp on it its legal value, so as to encourage and facilitate its free circulation and assure stability in the currency. The thing so coined is itself money, ipse loquitur; but a treasury note is only a promise to pay money, and, at the utmost, can only be, like a bank bill or a bill of exchange, a representative of money; and it is even less a representative of money than such bills; for, while these must be paid in money, the treasury notes are payable in other promises in the same form. This literal import of the words “ to coin money ” is persuasively fortified by the accompanying power to regulate the value “ of foreign coin.” When the Constitution was adopted, as even yet, all foreign money was metallic coin; and therefore the power to regulate such coin was constructively restricted to coined metal, and did not include notes on the Bank of England, or consols, or other government bonds or securities. The conclusion is plain, and apparently inevitable, that the power to coin money was intended to mean to coin metal as the money of the United States; and the curse of the paper currency of the revolution, the fiscal ruin of the confederation, and the history of the adoption of the Federal Constitution, conduce strongly to prove that, when the people who adopted it delegated to Congress exclusive power to coin money,” they intended that nothing else than metallic coin should be money, or be a legal tender, in invitum, as money; and it is almost certain that they did not intend to confer on Congress anymore or other power to make money, or declare any thing else to be money, or compel the circulation of any thing else as money.

During the revolutionary war'with England each State had its own peculiar currency, consisting chiefly of its own bills of credit, which depreciated so rapidly as soon to become worthless; and the currency of no one State would circulate in any other State or elsewhere. Continental bills, issued by the confederation, also became so valueless as to frustrate regular commerce, bankrupt citizens, and produce general embarrassment and universal vexation and distress in all the States.

This paper currency excluded from circulation all coined money, as such currency always has done and always will do. Gold, and silver coin possesses an intrinsic valué nearly equal to its denomination, and is uniform throughout the commercial world. To insure its universal circulation without discount, no tender law is ever necessary; and, not depending on the credit of corporations or governments, it is not subject to the injurious fluctuations of a paper medium of no intrinsic value, which, upheld only by an uncertain and vibrating public opinion, cannot operate as a safe and uniform standard of value at home nor abroad. And Thiers, in the 2d vol. of his French Revolution, says this was so during the disturbing prevalencé of Assignats and Mandats, which proved so destructive in France. Even England, with her strong backbone of financial credit, burdened with the heavy pressure of the French revolution, which necessitated a compulsive suspension of specie payments by her great bank, never declared its notes to be money; and her omnipotent parliament, though unrestrained by the American check of fundamental law circumscribing its power, were too statesmanlike and self-denying to make them a legal tender; nor, under all its besetting temptations, did the Congress of the confederation, with express power to emit bills of credit, ever issue them as money or a legal tender. These, like multitudes of other historic examples, illustrate the great practical difference between coin and paper money and credit, as fully tested by the experience of mankind; and in no portion of the world or period of its history was this probation ever more conclusively effectual than in our own country for many years of sore trial preceding the adoption of the Federal Constitution. When this Constitution was adopted, a large majority of the people were inflexibly opposed to all “ paper money,” and looked to the precious metal as the only hope of an equable and universally accredited currency.

The debates in the convention echo that sentiment, and its offspring was coined money, as established by the Constitution. The articles of confederation gave to -its Congress power “ to coin money and emit bills of credit.” The same power was transcribed into a draft of the present Constitution; but, on the motion of Governeur Morris, the power to “ emit bills of credit” was stricken out by a large majority, and the power “ to coin money ” was left, as it now stands, alone. The following extracts from the debate on that motion will show the motive for that decision: Mr. Morris said, that “ if the United States had credit, such bills would be unnecessary; if they had not, unjust and useless.” Mr. Madison, afterwards President of the United States, said: “ Will it not be sufficient to prohibit the making them a tender ? This will remove the temptation to emit them with unjust views; and promissory notes? in that shape, may, in some emergencies, be best.” Mr. Gorham said he was “for striking out without any provision. If the words stand, they may lead to the measure.”

Mr. Mason, expressing doubts and unwillingness “ to tie the hands of Congress,” said: “ Congress (he thought) would not have the power unless it were expressed.”

Mr. Goram again said: “The power (of emitting.bills), so far as it will he necessary or safe, is involved in that of borrowing money;” that is, to issue Government notes, but not to force their circulation by declaring them money, nor making them a legal tender.

Mr. Ellsworth (afterwards Chief Justice of the United States) said he “ thought this a favorable moment to shut and bar the door against paper money. The mischiefs of the various experiments which had been made were now fresh on the public mind, and had excited the disgust of all the respectable part of America. By withholding the power from the new government, more friends of influence would be gained to it than by almost anything else. Paper money can,, in no case, be necessary. Give the government credit, and other resources will offer. The power may do harm — never good.” Mr. Wilson, afterwards a judge of the supreme court, of the United States, said that “ the striking out would have a most salutary influence on the credit of the United States. The expedient will never succeed whilst its mischiefs are remembered, and, as long as it can be resorted to, it will be a bar to other resources.”

Mr. Butler, suggesting that paper currency was not a legal tender anywhere in Europe, expressed anxiety for denying to Congress the power to declare it money, or make it a legal tender.

Mr. Read said: “ Unless the power to emit bills for currency should be stricken out, it would be as alarming as the { Beast in revelation.’ ”

Mr. Langdon declared that he would rather reject the whole plan than retain the three words, “ and emit bills.”

On the sentiments, and for the purposes thus indicated, the proposed power to emit bills of credit was i*epudiated by’ the vote of nine States, against the vote of New Jersey and Maryland.

These contemporaneous facts a^?e recorded in the 3d vol. of the Madison Papers, pp. 1343-4-5-6; and the debate on both sides shows, that, while a minority of the convention were in favor of vesting Congress with the supplemental power to issue bills for conventional circulation merely, not a single member, except perhaps Mr. Mercer, seemed willing to intrust Congress with power to make that currency money, or a legal tender. And, in a note appended to the 1346th page, Mr. Madison said that he acquiesced in the vote of the majority, because he presumed that “ withholding the express power ‘ to emit bills of credit’ would not disable the government from the use of public notes as far as they could be safe and proper, and would only cut off the pretext for a paper currency, and particularly for making the bills a tender.

“ Currency ” is not necessarily “ money;” whatever circulates conventionally on its own credit as a medium of exchange, whether it be bank notes, bills of exchange, or government securities, being thus practically current, is properly “ currency.” But such currency, merely spontaneous, is not “ money,” which is the legal medium of exchange, and the only true standard of value. And this distinction between money and currency seems to have been understood by the whole convention which proposed the Constitution to the States for their ratification, the minority proposing to vest Congress with power to supply a paper currency only as a voluntary medium’ of exchange, leaving the constitutional coin as the only money, and only legal tender. And the ratifying State conventions seemed to contemplate the subject in the same light. The denial of the power to emit bills of credit does not appear to have been even objected to in any State convention. And history indicates that, had the Constitution granted that power, it would have been rejected by a majority of the States.

The inevitable conclusion from this extraneous but incidental and illustrative evidence, is, that the people, in adopt-ting the Constitution, intended, with singular unanimity, to withhold from Congress, as well as from their own State Legislatures, the power to issue “paper money,” or make anything else than coined money a legal tender. But the face of The Constitution drives inevitably to the same conclusion. a "e power to coin “money” is the only money-making pow '-¿lelegated to Congress. Without express grant, Congress » /ild .have had no power whatever over money. The only grant made is specific and well-defined, and beyond this Congress can have no express authority to go; and any attempt to go farther would defeat the great purpose of defining and establishing coin as the money of the United States; and, therefore, and also because no such substantive power could be implied, Congress can have no implied power to make any thing else than coin money. Knowing that Congress could have no power over money except so far as delegated, the people chose, for national reasons, to delegate the single power “ to coin money,” and there stopped. And anxious to maintain coin as the only money, they tied the hands of their own Legislatures, and not only abandoned all their inherent power over money, except a qualified power over the legal tender,. expressly restricted to gold and silver., but, for the same immutable reason, withheld from Congress any power over tender. That renunciation of their absolute power and reservation of a qualified power over tender, is” itself, and alone, sufficient proof of a-.constructive and purposed denial to Congress of any power over it; for, as such power in Congress would necessarily be exclusive and paramount, the exercise of it would supersede or control all State power over tender, and, therefore, the qualified prohibition against the States would have been superfluous, idle, and inconsistent. But that prohibition, as qualified, is an acknowledgment of the power of the States, and the only object of it was to limit that retained power so as to prevent any legislative interference with the only money permitted to be made a tender in the United States. Consequently the people of the States, by retaining power over tender and granting none to Congress, constructively denied to Congress any implied power on that subject. And this conclusively fortifies the deduction from other reasons that they intended that nothing but coin should ever be made money, or a legal tender as such.

And if this be not true, why did they adopt the quoted prohibitions on their own power, and why grant the specific power only? If they intended that Congress should have any more power over money, why did they not make the grant more comprehensive? only and certainly because they intended that nothing but coin should ever be made legal money or tender either by their own Legislatures or by Cr gress. And, to prevent a frustration of their great p- . -mse as to an uniform money standard of value, they inten d that Congress should not, any more than their own Legislatures, have any implied power over money or tender for money.

The States abandoned their power to make any thing but gold and silver a tender in payment of debts contracted even under, and therefore regulated by, their own local laws, because the exercise of that abdicated power might defeat the national purpose of maintaining the currency and stability of the only legal money. And why should Congress claim such an undelegated and suicidal power? And whence does it derive it? Not from express grant, for that is constructively negatived, nor from implication, for such control over money and contracts can never be implied, even if there be no constructive negative of it; and if it possess any such power, its implied powers are unlimited by any constitutional test uniformly applicable. But it is said that Congress has more than once, with general approval and universal acquiescence, exercised that power by declaring that, when the intrinsic value of gold and silver coin had been slightly reduced, it should still, as before, be a tender for- its stamped value. The Constitution having made such coin money, and thereby a tender by tale, without any aid from Congress, it must have continued a tender in the same mode. These unnecessary acts of Congress were, therefore, only declaratory. They did not make the modified coin a tender; it was so independently of them, and would have been as much so without their sanction as with it; and were this not so, it would not even now be a. legal tender. This sham precedent, therefore, is neither authoritative, nor, in the slightest degree, even argumentative. The possibility of a debasement of coin is also urged to show that the uncertain fluctuations in the value of a paper currency will not justify the presumption that it should never be money as well as the coin, which is also subject to depreciation and occasional oscillation. As this assumption could not effect the construction of the Constitution, either on its history or its face, an answer is scarcely pertinent. But we will just say that a debasement of coin for the wanton purpose of degrading it, is a crime so rare and disgraceful as not to be apprehended in an age of Christian light and morality; and, moreover, that a prudent alloy, but slightly reducing the intrinsic value of coin, would scarcely, and but transiently, deteriorate it as a standard of value, and would still leave it more equable and valuable than any other medium or standard.

Thus history and the Constitution itself sufficiently prove, that, when the people of the States transformed their confederation of independent States into one supreme nationality of delegated and defined powers, their great charter of Union not only transferred no more power over money than to coin it and regulate the value of coin, but, lest the purpose of that limited power might be defeated by their own conflicting legislation on the currency, they buried all their local power over money. And it seems to us that they contemplated gold and silver coin as the only constitutional money or legal tender — for the following reasons:

1st. When the Constitution was adopted, the precious metals constituted the money of the civilized world.

2d. No other material combines the same elements of value, durability, and convenience, all essential to an international currency and measure of value, to secure which from all disturbing interference was the object of granting to Congress the power to coin money, and of confining money to coin. And, 3d. The interdiction of State power to make anything but gold and silver a tender for debt, and the’ studied omission to give-to Congress any power over the law of tender, clearly imply that gold and silver were intended to be the only money of the United States; for, if anything else should ever become money, it would thereby necessarily become a legal tender, and the States would be bound to declare it such, and make creditors take it as money.

Without the constitutional prohibition, the States might make anything else a tender as well as money, and thereby defeat the only purpose of giving to Congress the exclusive power to coin money alone. It was, therefore, unnecessary to confer on Congress power to make such money a tender— and it would have been inconsistent with the great popular purpose of the only power over money, to give to Congress the cormorant power to make bills of credit, or any paper effigies, a legal tender.

As some confirmation of our opinion on this subject, we presume to quote a concurrent opinion of an illustrious jurist, who, if not — as often styled- — the defender of the Constitution, was unquestionably among its most enlightened interpreters and consistent champions:

“Currency, in a large and perhaps just sense, inclüdes not only gold and silver and bank bills, but bills of exchange also. It may include all that adjusts exchanges and settles balances in the operations of trade and business. But, if we ■understand by currency the legal money of the country, and that which constitutes a lawful tender for debts, and is the statute measure of value, then, undoubtedly, nothing is included but gold and silver. Most unquestionably there is no legal, and there can be no legal tender in this country, under the authority of this government or any other, but gold and silver, either the coinage of our -own mints or foreign coins, at rates regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly prohibited from making anything but gold and silver a tender in payment of debts; and, although no such express prohibition is applied to Congress, yet, as Congress has no power granted to it in this respect but to coin money, and regulate the value of foreign coins, it clearly has no power to substitute paper, or anything else, for coin as a tender in payment of debts and discharge of contracts.”, “ The legal tender, therefore, the constitutional standard of value, is established, and cannot be overthrown. To overthrow it would shake the whole system.”

These are the recorded sentiments of Daniel Webster.

And in the United States vs. Marygold', 9th Howard, 567, the Bupreme court, characterizing the money power of Congress as a great trust, said that it involves “ the duty of creating and maintaining a pure and uniform metallic standard of value throughout the Union.” The trust could never be fulfilled if paper currency could ever be made a legal tender. But, in establishing, beyond legislative interference, gold and silver coin as the only legal money of the United States, the people did not contemplate the total exclusion of a paper currency, which they knew to be an useful and even a necessary auxiliary of commercial exchanges progressively multiplying and expanding. While, with a full perception of the essential difference between currency and mone}^ they fixed gold and silver as the only money, still they expected, as both useful and inevitable, the spontaneous circulation of bills of exchange, government bills, and even bank bills. History attests this, and the debates in convention prove it. They • also certify the decisive fact, that not one member, except perhaps one; intended or desired that Congress should have power to enforce such a circulation by declaring paper of any sort money, or making it a legal tender.

Banks, both national and local, may be constitutional. No power could be more conclusively settled by reason, authority, and time, than that of establishing a national bank. And, although no State has authority to “emit bills of credit” —defined in Craig vs. Missouri, to be bills issued by a State on its own credit, for the purpose of circulating as money — yet any State may incorporate natural persons for banking purposes; for, as the only object of such a charter is to impart legal individuality to a multitude of natural persons, and limit their inherent right to loan their own money, and issue their own notes, therefore, the corporation does not derive, from its charter, the power to lend money and discount bills. And the bank notes are not interdicted “ bills of credit.” Consequently, such notes, though neither actually nor potentially money, may be as legal a currency as bills of exchange, and this, therefore, is prescriptively settled. So, too, Congress had authority to issue treasury notes on the national credit as “ necessary and proper means ” for fulfilling “the end <of the express ” power to borrow “ money.” And, according to the government credit, they might lawfully circulate as voluntary currency, and, in that conventional character, might constitutionally pay duties, taxes, and all the public expenses, civil and military. But, apprehending a ruinous depreciation if left to depend on their own intrinsic credit, Congress, in the hope of elevating them to a higher and more uniform standard, thought fit to declare them money. Its power to do that is now the question. Some of the advocates of the power defend it by a vague and fervid declamation which the judiciary should never hear or heed. ' They appeal to the transcendental law of ‘ necessity; ” and assume that the act declaring treasury notes money, and making them a legal tender in payment of ‘“private” debts for enforcing their circulation as money, was indispensable to the salvation of the life of the union, and did, in fact, save it. This forlorn 9 plea is not sustained by either reason or history.

Was the credit of the government, with all its manifold and immense resources, so low or sinking so fast as to require the prop of the tender act? No; and truth echoes, everywhere, No. Was unlimited taxation a barren or an unavailable power? And might not a judicious resort to that resource, aided by other ample means, have secured the credit of the government, and, more certainly than the tender act, have upheld its treasury notes? And would not such a draft on the property of the people in proportion to their means have been far more equally distributive of the common burthen than that which was imposed chiefly on one class?

With the full.benefit of the tender screw, treasury notes sank below the alarming mark of more than two for one, and the heavy loss fell, not on the government only, but also on the laboring classes, and peculiarly and unequally on the creditor class. Had Congress, instead of trying the tender expedient, the constitutional availability of which was generally distrusted, properly increased the taxes and pledged the public revenue and lands, in the security of which all would have trusted, treasury notes would have been much more accredited. Or, had it made those notes, like the “ five-twenty ” bonds, draw a moderate interest, this alone, without increased taxation or coercive tender, would have prevented their depreciation to so low an ebb as that to which, with the tender prop, they were doomed to fall. This is well illustrated by the historic fact that interest-bearing bonds, which were never made atender, always stood higher than the tender notes. But had augmented taxation and plighted revenue and lands, and interest-bearing notes, been combined, who could doubt that the notes would have maintained a much higher and more equable standard of value than they did?

. Then, although the issue of treasury notes became necessary for the suppression of the rebellion, yet how, or in what degree, did the legal tender quality become necessary to save the union, or how, and in what degree, did it actually contribute to its salvation? The impai’tation of that quality may have promoted the circulation of the notes, and facilitated the payment of private debts. But how far the increased circulation and more easy payment of the people’s debts aided the government, no one can tell. We cannot see that it was necessary to save the union, nor can we believe that, without it, the rebellion — unsupported,' as it was, by equal money or credit — could ever, have succeeded. And we feel quite sure that it might have been more easily and economically suppressed, had the tender been omitted and other and better means, as just suggested, been employed.

But, even if that experimental expedient alone had been the most hopefully efficient, and had all the virtue which has been imputed to it, the concession of that fact would not prove the constitutionality of the tender act; for expediency is not power, nor is necessity a law to the judiciary.

The -solus populi may excuse usurpation, but can never make it law in this country, where it, is our birthright to claim and to enjoy the protection of a more supreme law, which recognizes no such plea as necessity, and where we all know that usurpation, for any cause, is insurrectionary in principle, and, if connived at by the judiciary, revolutionary in fact. “Military necessity ” may, more than any other, command a temporary submission to usurped power. Yet the Constitution, recognizing nonsuch law, should finally triumph through an independent judiciary, which will, sooner or later, right the wrong. And whatever may be occasionally said or thought to the contrary, it is a gospel truth that the ultimate welfare of our people depends on the integrity and practical supremacy of their fundamental law.

Then, having defined implied power, and shown, as we think truly, that all claim to such power must harmonize with the spirit and design of the Constitution, and having, also, endeavored to prove that the history and context of that organic law constructively allow nothing to be made money except gold and silver coin, and forbid a compulsive tender of anything else than such money, we now, finally, inquire how, or whence, did Congress derive the power to make treasury notes money, or a lawful tender for money? This power is claimed as incidental to some one or all of the express powers- — to declare war — to regulate commerce — and to borrow money.

Unless we are greatly mistaken in the foregoing outline, this power is not constitutionally incident to any of these express powers, nor to all of them together. It is not a “ necessary and proper ” means to the constitutional end of any one of them.

The power to regulate commerce does not extend to the internal commerce in a State, and, therefore, cannot apply to contracts growing out of any such local intercommunication. Nor does it carry with it the power to create the medium of exchange, foreign or domestic. That is fixed by the Constitution; and, moreover, a fluctuating paper currency deranges and cripples commerce, instead of regulating it. War can not give to Congress any power not conferred by the Constitution. It may afford occasions for the exercise of some power dormant in peace, bat it cannot give any power not delegated by the Constitution, nor, especially, any prohibited by its letter or its spirit, which are the same at all times, and, theoretically, as supreme in war as in peace, and as much so over soldiers as citizens — over armies as Legislatures. If this be not true, the powers of war may become omnivorous.

In times of popular effervescence or the turbulence of war in any of its forms, and especially in that of civil strife, the liberty and security guaranteed by the Constitution are in much more danger than in the tranquil season of peaceful repose; and the practical supremacy of fundamental principles is far more needful when tumultuous passions agitate the popular mind than when its calm reason rules. And, therefore, the Constitution was made more for stormy than quiet times, and should as certainly and constazztly operate supreznely. The government, through its Congress or its army, has no more zight, izi war thazi izi peace, to take pzivate property without just compezisation, which can be measured only by proof, to decide on which is a judicial functiozi, wisely withheld from the legislative department, and the assuznption of which by it would make this cherished guarantee a mockery, and frustrate its cozzsez-vative aizn.

If, therefore, Congress, izi peace, cannot make aziy other kind of znoney than gold and silver, or force anything else as a tender for znoziey, zio such atteznpts would be legalized by war. But war created the necessity, azid furnished the occaaion, for the exercise of the power to borrow money, which was lawfully dozie izi the mode of issuing treasury ziotes. And, consequently, if there was iznplied power to declare those notes money and make them a legal tender for money due on private contract, it must be incident to the borrowing power, and to no other express power. And if these treasury notes be money, to issue “money” “ to borrow money” would be a strange solecism. But we can scarcely see that such an enactment was, in the constitutional sense, a “ necessary ” mean to the end of borrowing; for it does not certainly appear to have essentially facilitated that object, crippled, as it was, by the act which employed it as a mean — and it is quite evident that, if, abstractly, it might have had some such effect, it was more than neutralized, even to the great depression of the notes, by the provision in the same act, which, instead of requiring duties on imports to be paid on those notes, exacted gold and silver. But however this may be, we cannot doubt that the expedient resorted to was not, in the constitutional sense, a “proper” mean. And this is already demonstrated, unless we are mistaken in the foregoing principles and illustrations of the Constitution bearing on the term “ proper,” or in the conclusion that the provisions, spirit, and history of the Constitution forbid anything but gold and silver as money or as a tender on contracts for money. And if we are right, as we feel well assured we are, no one can pretend that the power assumed is, or could be, implied, because it is an axiomatic truth, that nothing inconsistent with the Constitution can be implied as constitutional.

And had there been no other' objection to the assumed implication in this case, it would be repelled by the fact that to make money and fix the law of tender are great substantive powers; recognized and disposed of by the Constitution, and, therefore, no power on that subject can be implied beyond or different from that expressed.

The intrusion on State jurisdiction over private contracts furnishes another kindred illustration, equally apparent and conclusive.

To make treasury notes a legal tender in satisfaction of a contract for money, deriving its obligation from State laws, unconstitutionally impairs the legal obligation of the contract.

The legal obligation of a contract arises from, and is moulded by, the civil remedy provided by law for upholding and enforcing it. The law obliges or coerces, by some remedial process alone; and without legal remedy there can be no legal obligation.

But whenever there is such remedy there is such obligation. Man’s ingenuity cannot show how legislation can destroy or impair the obligation of a contract otherwise than by operating on the remedy. Any legislative act that takes away all remedy, destroys the obligation; and any such act as impairs the remedy, thereby impairs the obligation. Right and remedy are different things; and, consequently, no retroactive change in the remedy existing under the lex loci at the date of a contract would impair its obligation, unless the substituted or modified remedy is less stringent, available, and effectual; but any change that makes the remedy less efficacious, to that extent unquestionably impairs it.

The law, under the sanction and faith of which a contract is made and to be performed, defines its obligation. And, therefore, any legislative act that makes the right less valuable and available, so far impairs the obligation of the contract. The contract in this case bound the debtor to pay the creditor a certain sum in money. The law of Kentucky, where the contract -was made and to be performed, entitled the creditor to remedy to enforce the payment, in money, of the stipulated amount. And, of coarse, any legislation requiring him to take anything else, or of less value, would impair the legal obligation of his contract. Treasury notes are not money. Nor are $100 of such paper equivalent to the same sum in money. To the extent of the difference, the two things are not commensurable in either kind or. value; and, to the same extent, the creditor, if not permitted to recover hig debt in money, or, if compelled to take less than its value, is legislated out of it. The tender act of Congress, therefore, if enforced, impairs the obligation of the contract.

But the appellee insists that Congress had a constitutional right thus to impair. And, in support of that assumption, his counsel argued, that, as the provision in the Constitution prohibiting ail State legislation impairing the obligation of contracts does not apply to or restrain Congress, this pretermission implies a concession of that power to Congress. This presents an unsettled, difficult, and very important problem for judicial solution. On full consideration, our conclusion is, that Congress neither has, nor consistently or safely could have, any such power, except so far as it has been granted in the express power to establish an uniform system of bankrupt laws.

For the harmony of the Union, and the equality of commercial rights and intercourse between the people of the States, it was thought that bankrupt laws should be the same in all the States. And as that unity could be secured only by one will, the States delegated to Congress power to establish an uniform system of bankrupt laws, and reserved, each to herself, all other .power over private contracts.

A bankrupt law imports, ex vi termini, a release of a debtor on prescribed conditions without paying the debt; and, therefore, this grant gave Congress the power, in that class of cases alone, to impair th'e obligation of contracts; and, by necessary implication, it could exercise no power over any other class of contracts, all of which, according to the Federal theory, belong, and should belong, exclusively to the States, such private contracts being more local than national in character and interest. And knowing that Congress could rightfully exercise no power over contracts beyond what they granted, and having granted a limited power, the people, however tenacious of their local power, did not find that it was either fitting or consistent to insert an express prohibition against the exercise by Congress of power not granted to impair the obligation of contracts. The simple fact that they granted only a limited power, implies that they intended that Congress should not exercise an unlimited power or one less restricted. And that implication is made unquestionable by the proceedings of the convention, and by the fact, also, that the motives which dictated the prohibition to the States applied, to a great extent, and in a controlling degree, to Congress as well as to State Legislatures. To concede to Congress power over the obligation of all private contracts made under State laws, would change the theory of national and local power, alter the established and only safe or consistent test of power, and dangerously tend to too much centralism. This alone would be sufficient to repel all implication of power to make paper a lawful tender. We are therefore of the opinion that Congress has no constitutional power to impair the obligation of contracts beyond its express power over bankruptcy.

The case of Weston vs. the City of Charleston is, however, cited to show, that, as the express power to borrow money gave to Congress the incidental means to borrow on the best terms, any adaptable means may be chosen and maintained, even though it may intrude on State idghts.

But the principle of that case is not applicable to this.

In that case, the supreme court decided only, that, though a State had a general right to tax all property within its local jurisdiction, yet it could not tax the bank of the United States, because that institution had been constitutionally established by Congress, and there could be no antagonistic power in a State to destroy it, as might be done by indefinite-taxation. But in this case the question is one of power in Congress to make treasury notes a tender; and in deciding whether there was implied power to make them a tender, its inconsistency with the Constitution and its interference with rights reserved by the States and intentionally withheld from Congress, is not only admissible, but conclusive to show that such a mean is not “ proper,” and that, therefore, there could be no such implied power. The power to establish the bank had been adjudged as implied, and it never could have been decided to be constitutional had it been deem'ed inconsistent with the Constitution, or with State lights, which would have negatived the. implication. And that is the question in this case. Had the tender act, like the bank charter, been adjudged constitutional, and then had a State attempted to resist the tender because it interfered, with its own power over contracts, the case cited would have been analogous in principle. But the two cases are, in fact, antipodal in principle, and the cited case does not touch the case in hand. Without further elaboration, we are content with the conviction that the following conclusions are inevitable:

1st. The people, in adopting their national Constitution, with signal emphasis and impressive forethought, established gold and silver coin as the money, and the only legal money, of the United States.

2d. To secure their well-considered object, they determined that no legislation, State or national, should ever make anything else a legal tender for money demandable on arjy contract made between citizens under the sanction of State laws.

3d. That they experimentally understood the radical difference between constitutional money and a mere paper “ currency; ” and intended that no such mere currency should ever supplant the use or shake the stability of gold and silver as the true standard of value for money and for property.

The necessary corollary is, that all power not expressly delegated over money is constructively forbidden. And if this be true, there can be no implied power to make treasury notes a legal tender in private contracts. And this ultimate conclusion is illustrated by the significant fact, that, for more than seventy years succeeding the inauguration of the Union, Congress, in no financial pressure or vicissitude of fortune, ever, until February, 1862, attempted to make treasury notes, or any other paper credit, a tender for individual debt. To declare what shall be money and what a legal tender is a substantive power,frilly executed by the Constitution itself, and not left to ordinary legislation; and even otherwise, could not be implied as “necessary and proper” means subservient to the end of the express powers.

For the foregoing reasons, we not only see no plausible ground for the constitutional foundation of so much of the act of February, 1862, as declares United States treasury notes to be money, and a legal tender in payment of debts on private contract, but we think that it is destitute of any such support, and is clearly unconstitutional, and, therefore, should not be enforced as law.

Wherefore, a majority of the Court — Judge Williams dissenting — adjudge that the chancellor erred in requiring the appellant to accept treasury notes in discharge of his contract for money.

In coming to this conclusion, we have looked only to the clear and only safe horizon of power defined by the Constitution, and illustrated by such jurists and publicists as Hamilton and Madison and Marshall and Webster, all of whom were sufficiently latitudinarian. ' That line, consecrated by both authority and ti ne, we have long regarded as the true boundary of constitutional liberty and union. Beyond this there is no boundary line either defined or definable. To pass or obscure it, would change the equipoise of our correlative governments, and open a wide door to anarchy and despotism. And such an adventurous experiment would be pregnant with peril to our institutions.

To avoid it, and realize the hopes of our fathers, we must stand where they stood — super antiquas vias.

We apprehend that the tender enactment passed the true conservative line; and we do fear, that; if that leap be finally sanctioned, the power of Congress may soon become practically unlimited and illimitable, except by discretion and policy; we can see no other limit — none other has been defined in this case.

Persuaded that we are right, no apprehension of inconvenient consequences merely fiscal, nor of human responsibility, could excuse the announcement of any opinion which is not conscientiously our own. To guard the Constitution is the highest trust of the judiciary. And thinking as we do, were we to bow to any other power than the law, as we understand it, we should feel guilty of a criminal breach of trust and a shameful desertion of our post. Looking neither to the right nor to the left, we must know nothing but the law, and shall quietly pursue its straight and luminous pathway just as our own eyes see it. And we feel assured, that, whatever popular apprehension might be hastily awakened by an authoritative affirmance of our decision, it would soon be found to have been chimerical, and would be more than compensated by the assured fact that the Constitution, thus rescued from a labyrinth of arbitrary construction without any certain and assuring clue, would be hallowed by restored confidence and by revived hopes of its longevity and beneficence. Public necessity is an arbitrary and unsafe dictator; and to - save, while salvable, from its lawless dominion, an upright jjidiciary should now, if ever, self-sacrificingly if need be, illustrate the righteous maxim of Ghristian patriotism— ilFiai justicia ruat codum”

Wherefore, the judgment of the chancellor is reversed, and the cause remanded with instructions to render, in appellant’s favor, a judgment conformable with the principles of this opinion.