Metropolitan Bank v. Van Dyck (27 N.Y. 400, 1863)

Davies, J.

The question presented for our determination in these actions is one of the gravest importance, and chailenges our most careful consideration. We are called upon to annul and set aside an act of the Congress of the United States, passed in conformity with the forms of the fundamental law, after grave deliberation by both houses of Congress, and which has assumed the form of a law, with the approval of the executive. Two departments of the government have therefore united, and all which by the provisions of the Constitution are required to unite, in the enactment of a law, The responsibility of determining whether these two depart' ments have violated the Constitution is now cast upon the third department, that of the judiciary, and however great that responsibility may be, we have, in the discharge of the duties imposed upon us, to meet it, and decide whether or not the Constitution has been violated. Before proceeding to the discussion of the precise question presented for adjudication in the present cases, it will greatly aid us in arriving at a correct and intelligent conclusion to advert briefly to the system of government organized by the Constitution of the United States, the principles which should govern in the construction of that Constitution, and the decisions which have been made, touching the powers of Congress under various provisions of that Constitution.

We are all familiar with the fact, that the first system of a general or national government, formed by the colonies in this country, upon their separation from the crown of Great Britain, and assuming the position of independent states, was that of a confederation of the several states. “Articles of confederation and perpetual union ” were entered into between the several states; and the style of the confederacy was that of “ The United States of America.” Bach state retained its sovereignty, freedom and independence, and every power, jurisdiction and right which were not by the articles of that confederation, expressly delegated to the United States, in Congress assembled. The ratification clause of the articles solemnly declared, that “whereas it has pleased the great Governor of the world, to incline the hearts of the legislatures we respectively represent in Congress to approve of and to authorize us to ratify the said articles of confederation and perpetual union: Know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and' entirely ratify and confirm each and every of the said articles and perpetual union. And we do further solemnly plight arid engage the faith of our respective constituents, that ... the articles thereof shall be inviolably observed by the States rye respectively represent; and that the union shall be perpetual.” History informs us of the defects and the weakness of the articles of confederation, and of the conviction of the whole country that a'different and more efficient system of government must be devised to insure to the people of the several states, their common defence, the security of their liberties, and their mutual and general welfare. A convention assembled in Philadelphia in 1787, which framed a Constitution that received the sanction of the people of the several states, and under which a government was organized in 1789, which has challenged the admiration of the world, and under the benign administration of which we have become a great and powerful nation, among the first of the earth.

The address'of the convention to the people on submitting the result of their labors for approval, which was signed by George Washington, its President, says: “The friends of our country have long seen and desired that the power of making war, peace and treaties, that of coining money, and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union. . . . In all our deliberations on this subject we kept steadily in view that which appears to us the greatest interest of every true American—the consolidation of our Union—in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed upon our minds, led each State in the Convention to be less rigid on points of inferior magnitude than might have been otherwise expected; and thus the Constitution which we now present is the result of a spirit of amity and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.”

The Constitution, thus prepared, was submitted to the people of the several States in conventions assembled, and they aggregately declared, in ordaining and establishing the said Constitution for the United States of America, that “the"people of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and to our posterity,” did ordain and establish the same.

A perpetual Union was thus established by the articles of confederation; to render that Union more perfect was the object to be'attained by the Constitution. It was to secure to the framers thereof, and to their posterity, the blessings enumerated. The consolidation of the Union and its perpetuity were not all that was contemplated. Absolute sovereignty and complete supremacy in the exercise of all gov rnmental powers confided to the national government were intended to be secured, and it is believed that such intention was accomplished.

All" legislative powers thereby granted were vested in the Congress, and the powers so granted to Congress are specifically enumerated in the eighth section of article first; and lest there might be doubts suggested as to the fullness of the authority granted, to such specific enumeration this clause is added, “ and to make all laws which shall be necessary- and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The omnipotence of the British Parliament is not more absolute than is the supremacy of the Congress of the United States upon all subjects which are either expressly or impliedly delegated to it. The President of the United States, upon his induction into office, is sworn to “preserve, protect and defend the Constitution of the United States.” He is the only officer in the national or state governments who is required to take that oath, and all executive, legislative and judicial officers, both of the United States and of the several states, are required to be bound by oath or affirmation to support the Constitution of the United States. (Sec. 3 of art. 6.) It is made the duty of the President, from time to time, to give to Congress information of the state of the Union, and to recommend such measures as he shall judge necessary and expedient, and it is the duty of Congress; within the powers delegated to it, to pass such laws as may be necessary and proper to aid the President in fulfilling the high and imperative trust reposed in him, and to enable him to preserve, protect and defend the Constitution. To accomplish all these purposes, and for the execution of the powers thus conferred on the government of the United States, and for its own protection and preservation, and its own defence, the Congress of the United States has absolute control over all the citizens thereof, and of the property and resources of the nation, subject only to that accountability which a representative in a free government owes to his constituents; and that ordeal, happily, in our favored land, is of frequent recurrence. That there might not be any misapprehension as to the Eact of this absolute and perfect supremacy, the Constitution emphatically declares that “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges of every state shall be bound thereby; anything in the Constitution or laws of any state to the contrary notwithstanding.”

The judges of every state are expressly declared to be bound by the Constitution and the laws of the United States, made in pursuance thereof, and as they have all taken an oath to support that Constitution, every safeguard would seem to have been provided to ensure their fidelity to that Constitution and the laws made under it. Such laws, overrule the state constitutions, and the laws of every state, and if the latter conflict with the former, they are void and nugatory, and it is the imperative duty of the judges so to declare.

These views, it is believed, are fully sustained’by learned commentators, as well as by the authoritative decisions of the Supreme Court of the United States, the final arbiter of the powers of that government. (Story’s Com. on the Constitution, §§ 354, 355, 356, 360.) In Marvin v. Hunter (1 Wheat., 304, 324), the Supreme Court said: “The Constitution of the United States was ordained'and established, not by the states in their sovereign capacity, but emphatically, as the preamble of the Constitution declared, by the people of the United States.” Chief Justice Marshall, in delivering the unanimous opinion of the court in the case of McCulloch v. Maryland (4 Wheat., 416), observed: “ From the conventions called to ratify it the Constitution derives its whole authority. The government proceeds directly from the people, ‘ is ordained and established ’ in the name of the people, and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquillity and secure the blessings of liberty to themselves and to their posterity.’ The assent of the states in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived by the state governments. The Constitution, when thus adopted, was of complete obligation and bound the state sovereignties. It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to governments, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, ‘ in order to form a more perfect union,’ it was deemed necessary to change this alliance into an effective government, possessing great and. sovereign powers, and acting directly on the people, the necessity of referring it to the people and of deriving its powers directly from them was felt and acknowledged by all. The government of the Union, then, is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. ... It is the government of all, its powers are delegated by all,, it represents all, and acts for all.” These quotations are thus liberally made, because of their pertinency to the present investigation, and for the reason that they are authoritative expositions of the objects and purposes of the Constitution, and of the source of its power, and are to be recognized and accepted as such by all triunals. The government thus formed, is supreme and self-supporting and self-perpetuating. It cannot be dependent for its life or existence upon other governments or sovereignties, but has given to itself vigor and strength sufficient for its own preservation and perpetuity. This point was directly resolved in the case of McCulloch v. Maryland (supra), in which Chief Justice Marshall said: “ If any one proposition could command the universal assent of mankind, we might expect it would be this, that the government of the Union, though limited in its powers, is supreme within its sphere of action. . . . Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind the component parts. But this question is not left to mere reason; the people have, in express terms, decided it by saying, ‘this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land,’ and by requiring that the members of the state legislatures and the officers of the executive and judicial departments of the states, shall take the oath pf fidelity to it.”

The same doctrine was distinctly enunciated by Chief Justice Taney, in the case of Ableman v. Booth (21 How., 506, 516), where he says: “ The powers of the general government and of the states, although both exist and are exercised within the same^territorial limits, are yet separate and distinct sovereigrties, acting separately and independently of each other within their respective spheres; and the sphere of action appropriated to the United States, is as far beyond the reach of the judicial process issued by a state judge or a state court, as if the line of division was traced by landmarks and monuments visible to the eye.”

Again, we are to give to the various provisions of the Constitution such a construction as will most effectually subserve the great purposes of its formation, and best promote the general welfare of the grantors of the powers contained in it, the people, the source and fountain of all power. The grant of power is to be construed most favorable to the grantor, espe. dally where the power is granted, or the agency created, for the benefit and welfare of the grantor, or principal. The rule which should govern in such á case is clearly laid down by Story (Com. on Const., §413). He says: “But in construing a constitution of government framed by the people, for their own benefit and protection, for the preservation of their rights and property and liberty, where the delegated powers are not and cannot be used for the benefit of their rulers, who are but their temporary servants and agents, but are intended solely for the benefit qf the people, no such presumption, to use the words in the most restricted sense, necessarily arises. The strict or the more extended sense both being within the letter, may be fairly held to be within their intention, as either shall best promote the very objects of the people in their grant, as either shall best promote or secure their rights, property or liberty.”

This court, in the case of The People v. New York Central Railroad Company (24 N. Y., 485, 486), approved of the rule enunciated by Johnson, J., in Newell v. People (3 Seld., 93), that a constitution is an instrument of government, made and adopted'by the people for practical purposes, connected, with the commerce, business and wants of human life. For this reason, pre-eminently, every word should be expounded in its plain, obvious and common sense, and Judge Denio, arguendo, in the same case, stated the principle of interpretation, which, while it commends itself to the good sense of all, is abundantly supported by authority, that a written constitution, framed by men chosen for the work by reason of their peculiar fitness, and adopted by the people upon mature deliberation, implies a degree of carefulness of expression proportioned to the importance of the transaction; and the words employed are to be presumed to have been used with the greatest possible discrimination. Chief Justice Marshall, in Gibbons v. Ogden (9 Wheat., 188), in interpreting a provision of the -Constitution of the United States, says: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who adopted it must be understood to have employed words in their natural sense, and to have intended what they said.”

We are now prepared to enter upon the inquiry, what powers have been conferred by the Constitution upon Congress, and whether any such powers authorize the enactment by that body of the act passed February 25, 1862.

The express powers needful to be referred to, thus specifically delegated to Congress, are:

1. To levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.

2. To borrow money on the credit of the United States.

3. To regulate commerce with foreign nations, and among the several States and with the Indian tribes.

4. To coin money, regulate the value thereof, and of foreign coin.

5. To provide for the punishment of counterfeiting the securities and current coin of the United States.

6. To declare war, grant letters of marque and reprisal. .

7. To raise and support armies.

8. To provide and maintain a navy.

9. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions»

10. The United States having guaranteed to every State-in this Union a republican form of government, and engaged to protect each of them against invasion and against domestic violence, Congress has power to fulfill those engagements.

11. Congress has also power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

We are to apply to the construction of the powers thus delegated, the rule as settled in the case of McCulloch v. Maryland (supra), that the Government of the United States can claim no -powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms, and where a power is expressly given in general terms, is not to be restrained to particular cases, unless that construction grows out of the context, expressly or by necessary implication.

Chief Justice Marshall, in Gibbons v. Ogden (supra), in delivering the opinion of the court, says: “ This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed ? Is there one sentence in the Constitution which gives countenance to this rule ? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper for the purpose. But this limitation in the means which may be used is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. . We do not, therefore, think ourselves justified in adopting it. What do the gentlemen mean by a strict construction ? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the terms, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found'in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument— for that narrow construction which would cripple the government and render it unequal for the objects for which it is ■declared to be instituted, and to which the powers given, as fairly understood, render it competent—then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. . . If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We' know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can inure solely to the benefit of the grantee; but is an instrument of power for the general advantage, in the hands of agents selected for that purpose; which power can never be executed by the people themselves, but must be placed in the hands of agents or. lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”

Mo apology is necessary for quoting thus liberally from this profound jurist and learned expounder of the purposes and objects of the Constitution, and of the powers conferred by it upon the Congress of the United States, upon the departments and officers thereof.

We should be doing great injustice "to the framers of the Constitution, and a great wrong to the people who adoptfed it, to secure to themselves and their posterity the blessings of liberty, if we give to it such a construction as will cripple the government, and render it unequal to the objects for which it was instituted. We must also bear in mind that no interpretation of the words, in which those powers are granted can be a sound one, which narrows their ordinary import, so as to defeat the objects for which that Constitution was made. That would be to destroy the spirit and to cramp the letter of the Constitution itself.- Mr. Justice Story, in delivering the opinion of the court in Martin v. Hunter (1 Wheaton, 304, 326, 327), says: “This instrument (the Constitution) like any other grant, is to have a reasonable construction according to the import of its terms; and when a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expiessly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not impracticable task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its own wisdom and the public interests should require.”

We have had pressed upon us, with much force and eloquence, the tenth amendment to the Oonstitution, as containing a restriction upon the powers of the government of the United States. Its languagé is: The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states or to the people. The same' reservation,, in substance, was contained in the second article of the articles of confederation, except that the word “ expressly ” was there placed before the word “ delegated.” The omission of this word in the tenth amendment is most significant, and shows the object was not to interfere with or restrict any of the powers delegated to the United States by the Constitution, whether expressly delegated or not. This is the'view taken by the Supreme Court in the case of McCullough v. Maryland (supra), where it is said, in the opinion, that “ there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers, and which requires everything granted shall be. expressly and minutely described. Even the tenth amendment, which was formed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘ expressly,’ and declares only that the powers ‘ not delegated to the United States, nor prohibited by it to the states, are reserved to the states or to the people,” thus leaving the question whether the particular power which may become the subject of contest, has been delegated to one government or prohibited to the other, to depend on a plain construction of the whole instrument. The men who drew and adopted this instrument had experienced the embarrassment resulting from the insertion of the word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the.prolixity of a legal code and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor -ngredients which compose those objects be deduced from the nature of the objects themselves. That this was entertained by the framers of. the American Constitution, is not only apparent from the nature of the instrument, but from the language.” And it is emphatically asked, if this were not so, “ Why else were some of the limitations found in the ninth section of the first article introduced ? There was no express delegation of any of these powers to the Congress of the United States and the prohibition has no significance or meaning, unless it had been supposed that the powers thus prohibited could have been exercised, unless such prohibition had been made.” So also the first eight amendments to the Constitution, are all in restraint of powers, which it was supposed could have been .exercised by Congress without such prohibitions. None of them are applicable to any of the express powers delegated to' Congress, but embrace an enumeration of certain implied powers, which it was assumed Congress might exercise under the general delegation of powers, unless specially prohibited from, so doing. The omission in the ninth section of article first, and in any of these amendments, of any restraint upon or prohibition to Congress to legislate upon the subject, of what should or should not be a legal tender, possesses great significance and importance, as we shall hereafter see, when we come to consider that precise point more attentively. It is sufficient here to observe, that the Constitution contains no prohibition upon Congress from legislating on that subject. It can be hardly necessary to say that the prohibitions contained in the tenth section, which are specially made applicable to the states, have no relation to, and in no sense, impair or affect any of the powers of Congress. If these prohibitions were equally binding on Congress, as upon the states, then they were all prohibited to Congress equally. That the framers of the Constitution did not so regard it, is conclusively shown by the fact that, while they prohibited the states from doing several things, among others, to pass any bill of attainder, ex post facto law, or grant any title of nobility, those three things were only prohibited to the Congress, and the reasonable and legitimate deduction from such omission is, that the other things not prohibited to Congress were allowed to be exercised by it, if those matters came within the purview of either the express or implied powers granted. This argument is not weakened by the fact that the Constitution expressly delegated to Congress the power to grant letters of marque and reprisal, and to coin money, and omitted saying anything on the other matters prohibited to the states.

Such would seem to have been the view taken by distinguished members of the house of representatives of the United States in the debate on the bill to incorporate the United States Bank, in June, 1811. Mr. Crawford, of Georgia, afterward Secretary of the Treasury, said: “If the state governments are restrained from exercising this right to incorporate a bank, it would appear, ex necessitate rei, that this right is vested in the United States. The entire sovereignty of this nation is vested in the state governments and in the federal government, except that part of it which is retained by the people, which is solely the right of electing their public functionaries.” Mr. Alston, a member for South Carolina, said: “ In the tenth article, first section, it is said, no state shall coin money, emit bills of credit, or make anything but gold and silver coin a legal tender in payment of debts; the interpretation which I give to it is, that the United States possess power to make anything besides gold and silver a legal tender. If what I conceive to be a fair interpretation be admitted, it must follow that they have a right to make bank paper a legal tender. Much more, then, have they the power of causing it to be received by themselves in payment of taxes.” (Elliott’s Debates, vol 4, pp. 367, 368.) These positions do not appear to have been controverted in the debate.

It seems here appropriate to refer to the provision of the particular act of Congress now under consideration. It was passed"on the 25th of February, 1862, and is entitled “an act to authorize the issue of United States notes, and for the redemption or funding thereof, and for funding the floating debt.of the United States.” The first section authorized the Secretary of the Treasury “ to issue, on the credit of the United States, one hundred and fifty millions of the United States notes,” and declared that the same “shall of receivable in payment of all taxes, internal duties, excises, debts and demands of every kind, due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin, and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid.”

The question presented for decision in these actions is, has Congress the power, under the Constitution, to make a law declaring treasury notes, issued by the United States, and payable at its treasury, for the redemption of which the credit of the federal government is pledged, and for the payment whereof the entire property of the government and that of each citizen, which may be reached by taxation, is also pledged, a legal tender in the payment of debts, and lawful money of the United States ?

Before proceeding to the consideration of this question, it will be instructive to revert to the proceedings of the convention which framed the Constitution.

The second clause of section eight of article first of the Constitution was originally reported in these words: “ To borrow money and emit bills on the credit of the United States.” This clause coming up for consideration in the convention, Mr. Governeur Morris moved to strike out the words “ and emit bills on the credit of the United States,” remarking that, if the United States had credit, such bills would be unnecessary— if they had not, unjust and useless. Mr. Madison 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. Morris replied, that striking out the words will leave room still for notes of a responsible minister, which will do all the good without the mischief. Mr. Gorham was for striking out without inserting any prohibition.- He also said, as to- Congress having the power to issue paper money: “ The power, as far as it will be necessary or safe, is involved in that of borrowing

Mr. Mercer was a friend to paper money, and was, consequently, opposed to a prohibition of it altogether. He said “it would stamp suspicion on the government to deny it a discretion on this point.” The clause was stricken out (Madison Papers, vol. 3, p. 1343, &c.), but no prohibition on Congress was inserted to issue paper money or to make the same a legal tender.

Mr. Madison adds, in a note at page 1346, that the vote of Virginia in the affirmative was occasioned by the acquiescence of Mr. Madison, who became satisfied that striking out the words 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 either for public or private debts.

Mr. Morris subsequently reported the Constitution to the convention, and the second clause of section eight was reported as it now stands, the words “on the credit of the United States,” which had been erased, having been reinserted. The power was, therefore, given to Congress to borrow money on the credit of the United States, and it would appear to have been the -understanding of the members of the convention, that such power authorized the issuing of notes or bills by the government. It is undeniable, that the convention, with its attention particularly directed to the consideration of the question, declined to prohibit their issue, and also declined to prohibit the making of them a legal tender in payment of either public or private debts. The exigencies of the government at an early day compelled a resort to the power of borrowing money on the credit of the United States, and such power has been exerted and rendered beneficial in the form of treasury notes, issued by it and on the public credit. On the 30th of lune, 1812, the first act was passed authorizing the issue of these notes to the amount of $5,000,000, and the sixth section of the act declared that they should be received in payment of all duties and taxes laid by authority of the United States, and of all public lands sold by its authority. These notes, therefore, became a legal tender for.debts of this character due the United States, and the act was approved by President Madison.

Issues of treasury notes have been authorized by acts of Congress of February 25, 1813; March 4, 1814; December 26, 1814; October 12, 1837; January 31, 1842; August 31, 1842; July 22, 1846; January 28, 1847; December 23, 1857.

President Madison, in approving the act of June 30, 1812, entirely overcame the scruple or doubt suggested by him.that the bills which might be issued under the authority to borrow money, ought not or could not be made a tender for public debts. That Congress possessed that power is now settled by judicial authority. In Thorndike v. The United States (2 Mason, 1, 18), Story, J., said: “By the statutes of the United States, under which treasury notes have been from time to time issued, it is enacted, that such notes ■ shall be receivable in payment to the United States, for duties, taxes and sales of public lands, to the full amount of the principal and interest accruing due on such notes. It follows, of course, that they are a legal tender in payment of debts of this nature due to the United States, and by the very tenure of the acts, public officers are bound to receive them.”

We find, therefore, a long continued practice on the part' of Congress in the issue of treasury notes on the credit of the United States, and declaring such notes to be a legal tender in payment of certain debts due to the United States, and the legality of such notes sanctioned by all departments of the government, and the power of Congress to issue the same and make them such legal tender, expressly affirmed by the courts. The deductions to be made from such facts will be hereafter adverted to, It should be observed here, that the power to issue treasury notes, on the credit of the United States, was distinctly conceded on the argument by the learned counsel, who appeared in opposition to the act of Congress now under consideration.

Congress have continuously, since the year 1792, exercised the power of declaring what shall be a legal tender in payment of private as well as public debts, in reference to a metallic currency. Now, it is conceded that there is no express delegation of power to Congress to legislate at all, on the subject of legal tender, and, as has been remarked, neither is there any prohibition in the Constitution, upon Congress, forbidding such legislation, or declaring what it shall or shall not make a legal tender. This scrupulous omission to make any provision in the Constitution, on this subject, was not accidental. The attention of the convention-was particularly attracted to it, as we have seen, and we cannot doubt that the members of the convention intentionally omitted inserting any provision on the subject, preferring to leave its exercise to the implied powers delegated to Congress. It is clear, from the remark of Mr. Madison in the convention, already quoted, that in his opinion Congress would have the power to declare bills or notes issued on the credit of the United States, a legal tender, unless prohibited from so doing, by some provision of the Constitution.

Another significant circumstance as indicating the opinion of the convention that Congress had the power to legislate on the subject of legal tender, is found in the fact, that on the 6th of August, 1787, the Constitution, as previously agreed upon in the Convention, was reported by the committee of detail, nearly in the form it was subsequently passed. But article thirteenth of the then proposed Constitution, declared that “ no state, without the consent of the Legislature of the United States, should make anything but specie a tender in payment of debts.” This proposed clause of the Constitution, therefore, contained a distinct and unequivocal acknowledgment that it would be competent for Congress to give its consent to the legislatures of the several states, to make something else than a specie tender in payment of debts. It is also an explicit admission that such a power was vested in Congress, and that it, by consent, might permit state legislatures to do the same thing. It is an absurdity to say that Congress could consent that the legislatures of the states could do this, and not have the power of doing the thing itself; it of course could not grant to others powers it did not itself possess. On this clause coming up for final Consideration, it was amended by making the prohibition upon the state legislatures peremptory and absolute, as the same now stands in the first subdivision of section ten of article first. The fact that the convention made the prohibition positive upon the states, does not militate at all against the argument derived from the conceded admission, that something else than specie could be made a tender for the payment of debts, with the consent of Congress.

This seems an appropriate place to consider the legislation of Congress under the powers conferred upon it to coin money, regulate the value thereof, and of foreign coins. It is to be borne in mind, that no express power is given by the Constitution to Congress to establish, or make anything a legal tender in payment of debts; neither, as has been already observed, is there any prohibition contained in the Constitution forbidding legislation by Congress on that topic, or declaring what it shall or shall not make a legal tender. The framers of the Constitution could not have been ignorant that the power to declare what shall or shall not be a legal tender or, in other words, lawful money of a country, was a necessary incident of sovereignty, and had ever been exercised by the sovereign power in all civilized nations. They were equally cognizant of the fact, that the colonies had invariably exercised this power; and that the states, on the application of the Continental Congress, and pursuant to its reconimendation, had made the issue of paper money by the Continental Congress, for the purpose of carrying on the war of the revolution, a legal tender in payment of debts. This legislation by the states was invoked, because that Congress had no power to legislate. on any subject, and such legislation could only be had through the instrumentality of the states. Such weakness and defect, in the powers of the Continental Congress, were among the controlling reasons for the formation of the new system, brought into being by the Constitution.

In examining the history, of legislation on this subject, we find that the first act of Congress relating to legal tender, is that of April 2d, 1792, establishing “the mint for striking and coining gold and silver coinsand by section sixteen it was enacted, that all the gold and silver coins which shall have been issued from said mint, shall be a lawful tender in all payments whatsoever. The first issue of silver dollars from the mint was not before October, 1794; and of gold coin not before July, 1795; and the whole amount of metallic money issued from 1793 to 1795, was only $463,541.80 in value. To provide a legal medium.of commerce, an act was passed on the 9th of February, 1793, declaring that, from and after the first day of July, 1793, foreign -gold and silver coins should pass cur rent as money within the United States, and be a legal tender for the payment of all debts and demands, at the several ana respective rates therein mentioned and prescribed. This act embraced the coins of Great Britain, Portugal, France, Spain, and the dominions of Spain. It was practically the first legal tender act ever passed by Congress.

On the 4th of August, 1790, an act was passed by Congress, to provide for the collection of duties, which declared that certain foreign coins, therein enumerated, should be received in payment of duties at prescribed rates of value, but did not declare the same should otherwise be a legal tender. This provision of the act of 1790, was repealed by the act of February 9, 1793, the repeal to take effect July 1, 1793. Subsequently other acts have been passed by Congress, from time to time, changing the value of certain foreign coins and making them a legal tender, for the payment of all debts and demands, sometimes by weight and then again by tale. (Act of April 10,1806; act of March 3, 1823, making foreign coins receivable in payment of public lands; act of 25th June, 1834, dedaring certain foreign silver coins to be of the legal value, and to pass current as money within the United States by tale for the payment of all debts and demands; act of March 3, 1843.)

By the act of June 28,1834,-foreign gold coins were directed to pass current as money within the United States, and be receivable in all payments by weight, of the fineness and at the rates therein mentioned. By the act of January 18,1837, the standard for both gold and silver coins of the United States, was thereafter to be such, that of one thousand parts by weight, nine hundred should be of pure metal and one hundred of alloy, and the alloy of the silver coins should be of copper, and the alloy of the gold coins should be of copper and silver; provided, that the silver do not exceed one-half of the whole alloy. The, weight of the gold and silver coins was prescribed, and they were declared to be legal tenders of payment according to their nominal value. And it was further provided in and by said act, that the silver coins theretofore issued at the mint of the United States, and the gold coins issued since July 1, 1834, should continue to be legal tenders of payment for their nominal value, on the same terms as if they were of the Coinage of that act.

By the act of 27th February, 1853, the weight of the half-dollar was reduced from 206J grains to 192 grains, and all the coins of lesser denominations in proportion, and they were made legal tenders in payment of debts for all sums not exceeding five dollars. We thus see that Congress, since the organization of the government, commencing in the presidency of Washington, has exercised plenary power and control over the subject of currency and legal tender laws; it has established the value of certain foreign coins at one time and changed it at another; has made them a tender in payment of all debts, - now by weight, -and then again by tale; repealed such laws and enacted them again, sometimes making such coins a legal tender in payment of all debts, and at other times limiting them to the payment for public lands or for duties and taxes, also making the evidences of the public debt or stock of the United States a legal tender in payment for public lands,(See act of March 3, 1797.)

We also see that Congress has changed, from time to time, . the standard of value of the coins struck by our own mint, debased them by altering the fineness and .weight and the relative value of .the gold.and silver, and making the debased coins, as -well as those of a greater value, not debased; equally a legal tender for the payment of all debts, public and private, at their respective nominal values.

As has been before observed, there is no express grant of power to Congress to make-gold and silver or anything else a tender in .payment of debts, .public or private. . It is conceded that Congress may properly say what the United States -may receive in payment and discharge of debts due -to it, and that it may therefore rightfully say in what currency or metals or things payment may-be made of them. Admitting this, it .is contended that it does not follow that Congress has the power to say what shall be a tender and discharge of a debt due from one individual to another. Our review of the legislation of Congress has shown us, that under the clause of the Constitution authorizing it to coin money and regulate the value thereof, Congress has uniformly declared that the money so coined, and the value of which has thus been regulated, should be received as a.legal tender in payment of all debts, equally whether due to the government or-to private individuals, and that under the power-to regulate the value of foreign coins, it has so, from time to time, regulated and prescribed their value, and made.them a legal tender in payment of all debts. It has made coins of unequal intrinsic value and -fineness equally a tender in payment of debts at their respective nominal values.

All these powers have been thus exercised by Congress frorn the foundation of our government, ■ and so far as my investigations have enabled me to say, they'have been unchallenged. W.e are not furnished with any case where they, have been questioned by the courts, and what inference such a uniform course of legislation, acquiesced -in by the courts and by the country, .should have, would seem to -be well established. The general rule of construction which has been sanctioned is, that contemporaneous and legislative exposition regarding a power furnishes strong proof of the existence of such power.

Judge Story says, in reference to a question of jurisdiction of the Supreme Court: “ This weight of contemporaneous exposition by all.parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court through so long a period do, as we "think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject tó' perpetual and irremediable doubts.” (Martin v. Hunter, 1 Wheat., 421.) In Cohens v. Virginia (6 Wheat., 421), Chief Justice Mabshall observed, that “ this concurrence of statesmen, of legislators and of judges, in the same construction of the Constitution, may justly inspire some confidence in that construction.” “ An. uniform course of action, involving the right to the exercise of an important power for half a century, and this almost without question, is no unsatisfactory evidence that the power is rightfully exercised.” (Briscoe v. Bank of Kentucky, 11 Peters, 257.)

“ The uniform construction given to a provision of the Constitution by the legislature, with the silent acquiescence of the people, including the legal profession and the judiciary, and the injurious results which would come from a contrary interpretation, are proper elements of a legal judgment on this subject.” (Per Black, Ch. J., Moores v. City of Reading, 21 Penn., 188; see also Norris v. Clymer, 2 Penn., 277.)

Marcy, J., in People v. Green (2 Wend., 274), says: “ Great deference is certainly due to a legalized exposition of a constitutional provision, and especially when it is made almo.st contemporaneously with such provision, and may be supposed to result from the known views of policy and modes of reasoning; which prevailed among the framers of the instrument expounded.” Chancellor Walwoeth, in the case of The People v. Coutant (11 Wend., 511), said: “Upon a question of real doubt as to the meaning of a particular clause in the Constitution, a legislative construction, if deliberately given is certainly entitled to much weight, although it is not conclusive upon the judicial tribunals.” Many more cases might be cited in maintenance of the same propositions, but they are entirely unnecessary. Applying these rules to the points now under consideration, no doubt can remain that the early and long continued and uniform practice of Congress in passing legal tender enactments was warranted by the Constitution, and the acts thus passed were constitutional and valid. The power to make tender laws by Congress is an implied power, and it may be derived from many of the express powers conferred upon that body. If the power exists, then the government is, what it was intended it should be, sovereign, within its own sphere of action, as much so as if this power had been given in express words; and we have seen that Congress is expressly authorized by the Constitution to make all laws necessary and proper to carry this or any other granted power into execution. The general rules of construction apply here, that when a power is granted in general terms, the power is to be construed as co-extensive with the terms of the grant, nor is it to be restricted to particular cases, because it may be susceptible of abuse.

This point is very ably and conclusively discussed by Judge Stoby, in his work on the Constitution, and as this alleged or anticipated abuse of the power has been much pressed upon us in this argument, as a reason why we should hold that th'e power doe.s not exist, a more particular reference to the suggestions and reasons of this learned and authoritative commentator may be permitted. In section 425 he says: “A power given in general terms is not to be restricted to particular cases merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate, and in its common aspect addresses itself so much to popular fears and prejudices that it insensibly acquires a weight in the public mind, to which it is in nowise entitled.....But the argument from a possible abuse of power against its existence or use, is in its nature not only perilous, but in respect to governments would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible tb foresee all the exigencies which may arise in the progress of events, connected with the rights, duties and operations of the government. If they could be foreseen it would be impossible, ab initio, to provide for them. The means must be subject to perpetual modification and change: they must be adapted to the existing manners,' habits and institutions of society, which are never stationary; to the pressure of dangers or necessities; to the ends in view; to' general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized in every critical period, and remodeled in every generation, there must be left to those who administer the government a large mass of discretionary powers capable of greater or less actual expansion, according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. Ho Constitution can provide perfect guards against it. Confidence must be reposed somewhere ; and in free governments, the ordinary securities against •' abuse are found in the responsibility of rulers to the people, and in the just exercise of the elective franchise, and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the • permanent oppression of the people, and yet cases may easily be put in which a limitation upon such a power might be found in practice to work mischief, to incite foreign aggression or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet a limitation upon that power might, in a given case, involve the destruction of the independence of the country.”

Hothing could be added to the pertinency, cogency or conclusiveness of these views. Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn (6 Wheat., 204, 220),. uses the following apt and expressive language: “ The idea is Utopian that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries, at short intervals, deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.”

If, then, Congress has the power to establish a legal tender, is there any constitutional reason why the exercise of the power should be restricted to a particular medium? If Congress can coin any metallic substance, under the power to coin money, and stamp it with an arbitrary value, as it is conceded it may, then it follows from the practice of the government, and the rules and principles enunciated, that it can make such stamped metal a legal tender, at any designated value. Intrinsic value of the thing stamped or coined, has nothing to do with the question of power. Such metals, so stamped, are not issued or put in circulation on the faith or credit of the United States government. Uo pledge is made to redeem them, and they may possess little or no intrinsic value; yet it is not denied, that such pieces of metal so stamped or coined may be lawfully issued, and made a legal tender, and thus become lawful money of the United States. It is difficult to perceive, if this can be done with pieces of metal, why it is not equally within the power of Congress to declare the treasury notes which it may lawfully issue as a circulating medium, and which it may lawfully make a tender in payment of debts due to it, a legal tender also in payment of all debts. These notes are issued on the faith and credit of the whole Union, and the property of which, and of all its citizens, are pledged for their ultimate redemption; and if the metals may be made a tender, why may not notes equally be made a legal tender in payment of all debts, if the exigencies of the government should require it to be done, and Congress, in its wisdom, should think such necessity existed? That Congress was not confined to the use of the precious- metals in providing a currency for the people is apparent from the views expressed by Mr. Madison, than whom rio man better understood the powers of Congress, and the necessities and wants both of the government and the people. In his annual message to Congress of December 5, 1815, he says: “ The absence of the precious metals will, it is believed, be a temporary evil, but until they can again be rendered the general medium of exchange, it devolves on the wisdom of Congress to provide a substitute, which shall equally engage the confidence and accommodate the wants of the citizens throughout the Union. If the operation of the state banks cannot produce this result, the propable operation of a national bank will merit consideration; and if neither of these expedients be deemed effectual', it may be necessary to ascertain the terms upon which the notes of the government (no longer required as an instrument of credit) shall be issued upon motives of general policy, as a common medium, of circulation''

History informs us that the effect of serious and protracted wars is to produce a hoarding and withdrawal of the precious metals from circulation, and a suspension of -specie payments on the part of banking institutions. So inevitable is this result that no legislation is effective to prevent it. The Bank of England, with the assent of the privy council, suspended specie payments in 1797, during the war with France, and such suspension continued, with the assent of parliament, until in 1823. Parliament, by the act of May 3, 1797, sought to give currency to the Bank of England notes, and compelled the use of them in payment of debts, by prohibiting the arrest and holding to bail of any person, unless it should appear, that no offer to pay the sum of money claimed, in notes of the Bank of England, payable on demand, had been made. And the act of 3 and 4 William IV, 1833, declared that the Bank of England, notes should be a legal tender in payment of all sums above five pounds.

In the United States, during the war of 1812, the government was compelled to make use of the money of the suspended banks to enable it to carry on- the war. The results of that experiment are graphically depicted, by a great statesman of that period, familiar with all the operations of the government, and a principal actor in the events of his day. Mr. Calhoun, in his speech in the Senate of the United States, on the 16th of January, 1840, on the motion of Mr. Benton to strike out the nineteenth and twentieth sections of the Independent Treasury Bill, the clauses which permitted the reception and disbursement of federal paper, after remarking that he was the friend of the final and complete divorce of the government and the banks, and that if the government should have the blindness to repu