was made, nor was it a duty to pay money of equal intrinsic value in the market. (We speak now of contracts to pay money generally, not contracts to pay some specifically defined species of money.) The expectation of the creditor and the anticipation of the debtor may have been that the contract would be discharged by the payment of coined metals, but neither the expectation of one party to the contract, respecting its fruits, nor the anticipation. of the other constitutes its obligations. There is a well recognized distinction between the expectation of the parties to a contract and the duty imposed by it.

Nor can it be truly asserted that Congress may not, by its action. indirectly impair the obligation of contracts, if by the expression be meant rendering contracts fruitless, or partially fruitless. Directly it may, confessedly, by passing a Bankrupt Act, embracing past as well as future transactions. This is obliterating contracts entirely. So it may relieve parties from their apparent obligations indirectly in a multitude of ways. It may declare war, or even in peace, pass Non-intercourse Acts, or direct an embargo. All such measures may and must operate seriously upon existing contracts and may not merely hinder, but relieve the parties to such contracts entirely from performance. It is, then clear that the powers of Congress may be exerted, though the effect of such an exertion may be in one case to annul, and in other cases to impair the obligation of contracts.

* * * *

Closely applied to the objection we have just been considering, is the argument pressed upon us that the Legal Tender Acts were prohibited by the spirit of the Fifth Amendment, which forbids taking private property for public use without just compensation or due process of law. That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft or a war, may inevitably bring upon individuals great losses; may indeed render valuable property almost valueless. They may destroy the worth of contracts. But who ever supposed that because of this a tariff could not be changed or a non-intercourse Act, or an embargo be enacted, or a war be declared? By the act of June 28th, 1834, a new regulation of the weight and value of gold coin was adopted, and about six per cent. was taken from the weight of each dollar. The effect of this was that all creditors were subjected to a corresponding loss. The debts then due became solvable with six per cent. less gold than was required to pay them before. The result was thus precisely what it is contended the Legal Tender Acts worked. But was it ever imagined that this was taking private property without compensation or without due process of law?

We are not aware of anything else which has been advanced in support of the proposition that the Legal Tender Acts were forbidden by either the letter or spirit of the Constitution. If, there

fore, they were, what we have endeavored to show, appropriate means for legitimate ends, they were not transgressive of the authority vested in Congress. Here we might stop, but we will notice briefly an argument presented in support of the position that the unit of money value must possess intrinsic value. The argument is derived from assimilating the constitutional provision respecting a standard of weights and measures to that conferring the power to coin money and regulate its value. It is said there can be no uniform standard of weights without weight, or of measure without length or space, and we are asked how anything can be made a uniform standard of value which has itself no value? This is a question foreign to the subject before us. The Legal Tender Acts do not attempt to make paper a standard of value. We do not rest their validity upon the assertion that their mission is coinage or any regulation of the value of money; nor do we assert that Congress may make anything which has no value money. What we do assert is that Congress has power to enact that the Government's promises to pay money shall be for the time being equivalent in value to the representative of value determined by the coinage acts or to multiples thereof. It is hardly correct to speak of a standard of value. The Constitution does not speak of it. It contemplates a standard for that which has gravity or extension, but value is an ideal thing. The coinage Acts fix its unit as a dollar; but the gold or silver thing we call a dollar is in no sense a standard of a dollar. It is a representative of it. There might never have been a piece of money of the denomination of a dollar. There never was a pound sterling coined until 1815, if we except a few coins struck in the reign of Henry VIII, almost immediately debased, yet it has been the unit of British currency for many generations. It is, then, a mistake to regard the Legal Tender Acts as either fixing a standard of value or regulating money values, or making that money which has no intrinsic value.

*

But, without extending our remarks further, it will be seen that we hold the Acts of Congress constitutional as applied to contracts made either before or after their passage. In so holding, we overrule so much of what was decided in Hepburn v. Griswold, 8 Wall, 603, as ruled the Acts unwarranted by the Constitution, so far as they apply to contracts made before their enactment. That case was decided by a divided court, and by a court having a less number of Judges than the law then in existence provided this court shall have. These cases have been heard before a full court, and they have received our most careful consideration. The questions involved are constitutional questions of the most vital importance to the government and to the public at large. We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right. Brisco v. Bank of Ky., 8 Pet., 118. We are not accustomed to hear them in the absence of a full court, if it can be avoided. Even in cases involving only private rights, if convinced we have made a mistake, we would hear another argu

ment and correct our error. And it is no unprecedented thing in courts of last resort both in this country and in England to overrule decisions previously made. We agree this should not be done inconsiderately, but in a case of such far reaching consequences as the present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide and to affirm both these judgments.

Note. Mr. Justice Bradley filed an opinion concurring in that of the court and giving as his reason for voting in favor of the constitutionality of the Acts the fact that it was necessary to provide a proper currency for the country and especially in time of financial pressure and threatened collapse of commercial credit. Mr. Chief Justice Chase, and Justices Clifford and Field filed long dissenting opinions, in which Mr. Justice Nelson concurred. The gist of the dissenting opinions was that the court had decided the present questions in Hepburn v. Griswold and should adhere to the constitutional doctrines therein pronounced that gold and silver coin only could be legal tender without contract and against the will of the person to whom they are tendered.

Note. The decision in the case of Hepburn vs. Griswold was announced on February 7, 1870; five Justices voting against and three Justices voting for the constitutionality of the Legal Tender Acts. Chief Justice Chase, Justices Nelson, Clifford, Greer and Field constituted the majority, and Justices Swayne, Davis and Miller the minority. On the facts of the case, the decision was applicable only to cases where the debt was in existence before the Legal Tender Acts were passed, yet the reasoning of the majority seemed to deny to Congress the power to make United States notes legal tender even for future debts. This decision, of course, caused great uneasiness to business men throughout the country. During President Johnson's administration an Act had been passed reducing the number of Judges of the Supreme Court from nine to seven for the purpose of depriving him of the right to fill vacancies which were about to occur. When Hepburn vs. Griswold was decided, there was one vacancy on the Supreme Court Bench, and one of the majority Judges had resigned, though his resignation did not take effect until after the decision was rendered. After President Grant's inauguration, the number of Supreme Court Judges was restored to nine, and on February 18, 1870, President Grant appointed William Strong, of Pennsylvania, to fill one of the vacancies, and on March 21, 1870, Joseph P. Bradley, of New Jersey, to fill the other.

In his work on Congressional Government, page 38, Woodrow Wilson, speaking of these appointments, says:

"In December, 1869, the Supreme Court decided against the constitutionality "of Congress's pet Legal Tender Acts, and in the following March a vacancy "on the Bench opportunely occurring, and a new Justiceship having been "created to meet the emergency, the Senate gave the President to understand "that no nominee unfavorable to the debated Acts would be confirmed, two "Justices of the predominate party's way of thinking were appointed. The

BUREAU OF INTER

"hostile majority of the Court was out-voted, and the obnoxious decision "reversed."

On May 1, 1871, the Court as reorganized announced the decision in Knox v. Lee reported above, upholding the Legal Tender Acts on the ground that they were reasonably necessary to carry on the war, and so justified under the power to make war. Mr. Justice Strong, one of the new appointees, wrote the prevailing opinion, and Mr. Justice Bradley, the other, wrote a concurring opinion. Chief Justice Chase, and Justices Nelson, Clifford and Field dissented from the decision. In 1878 Congress ordered a re-issue of the Legal Tender notes, and as the Act could no longer be justified as a war measure, its validity was again challenged, and it was finally upheld in the following case of Julliard vs. Greenman.

JUILLIARD v. GREENMAN.

110 U. S., 421. 1883.

Juilliard, a citizen of New York, brought suit against Greeman, a citizen of Connecticut, to recover the sum of $5,122.90 in payment of one hundred bales of cotton sold and delivered to Greenman, who admitted the purchase and delivery of the cotton, and the agreement to pay for them. Greenman stated that he had offered and tendered to Juilliard, in payment of the debt, $22.50 in United States. gold coin, forty cents in silver coin, and two United States notes, one of the denomination of $5,000, and the other of the denomination of $100. The two notes were known as United States legal tender notes. These notes were originally issued under the acts of Congress of 1862 and 1863, and reissued and kept in circulation. under the act of Congress of May 31, 1878. The plaintiff had refused to take the notes, and contended that the defence was insufficient in law. The Circuit Court in New York gave judgment for Greenman. The case was appealed to the Supreme Court of the

United States.

MR. JUSTICE GRAY delivered the opinion of the court.

The notes of the United States, tendered in payment of the defendant's debt to the plaintiff, were originally issued under the acts of Congress of February 25, 1862, ch. 33, July 11, 1862, ch. 142, and March 3, 1863, ch. 73, passed during the War of the Rebellion, and enacting that these notes should "be lawful money and a legal tender in payment of all debts, public and private, within the United States," except for duties on imports and interest on the public debt. 12 Stat. 345, 532, 709. * *

*

The act of May 31, 1878, ch. 146, under which the notes in question were reissued, is entitled "An Act to forbid the further retirement of United States legal tender notes," and enacts as follows:

"From and after the passage of this act it shall not be lawful for the Secretary of the Treasury or other officer under him to cancel or retire any more of the United States legal tender notes. And when any of said notes may be redeemed or be received into the Treasury under any law from any source whatever and shall belong to the United States, they shall not be retired, cancelled, or destroyed, but they shall be reissued and paid out again and kept in circulation: Provided, That nothing herein shall prohibit the cancellation and destruction of mutilated notes and the issue of other notes of like denomination in their stead, as now provided by law. All acts and parts of acts in conflict herewith are hereby repealed." 20 Stat. 87.

The manifest intention of this act is that the notes which it directs after having been redeemed, to be reissued and kept in circulation shall retain their original quality of being a legal tender.

The single question, therefore, to be considered, and upon the answer to which the judgment to be rendered between these parties depends, is whether notes of the United States, issued in time of war, under acts of Congress, declaring them to be a legal tender in payment of private debts, and afterwards in time of peace redeemed and paid in gold coin at the Treasury, and then reissued under the act of 1878, can, under the Constitution of the United States, be a legal tender in payment of such debts.

The constitutional authority of Congress to provide a currency for the whole country is now firmly established. In Veazie Bank v. Fenno, 8 Wall. 533, 548, Chief Justice Chase, in delivering the opinion of the court, said: "It cannot be doubted that under the Constitution the power to provide a circulation of coin is given to Congress. And it is settled by the uniform practice of the government, and by repeated decisions, that Congress may constitutionally authorize the emission of bills of credit." Congress, having undertaken to supply a national currency, consisting of coin, of treasury notes of the United States, and of the bills of national banks, is authorized to impose on all State banks, or national banks, or private bankers, paying out the notes of individuals, or of State banks, a tax of ten per cent. upon the amount of such notes so paid out. Veazie Bank v. Fenno, above cited; National Bank v. United States, 101 U. S., 1. The reason for this conclusion was stated by Chief Justice Chase, and repeated by the present Chief Justice, in these words: "Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that Congress may constitutionally, secure the benefit of it to the people by appropriate legislation. To this end, Congress has denied the quality of legal tender for foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end, Congress may restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority. Without this power, indeed, its attempts