It is proper to say that Mr. Justice Grier, who | was a member of the court when this cause was decided in conference, and when this opinion was directed to be read,† stated his judgment to be that the legal-tender clause, properly construed, has no application to debts contracted prior to its enactment; but that upon the construction given to the act by the other judges he concurred in the opinion that the clause, so far as it makes United States notes a legal tender for such debts, is not warranted by the Constitution. Dissenting Opinion. Mr. Justice Miller dissenting: The provisions of the Constitution of the United States which have direct reference to the function of legislation may be divided into three primary classes: 1. Those which confer legislative powers on Congress. 2. Those which prohibit the exercise of legislative powers by Congress. 3. Those which prohibit the States from exercising certain legislative powers. and of foreign coin, and to punish the counterfeiting of such coin and of the securities of the United States. It has been strongly argued by many able jurists that these latter clauses, fairly construed, confer the power to make the securities of the United States a lawful tender in payment of debts. While I am not able to see in them, standing alone, a sufficient warrant for the exercise of this power, they are not without decided weight when we come to consider the question of the existence of this power as one necessary and proper for carrying into execution other admitted powers of the Government. For they show that so far as the framers of the Constitution did go in the country, it was confided to Congress and granting express power over the lawful money of forbidden to the States; and it is no unreasonable inference, that if it should be found necessary, in carrying into effect some of the powers of the to make its securities perform the office of money Government essential to its successful operation, be in harmony with the power over money in the payment of debts, such legislation would divided into the positive and the auxiliary, or, consideration would not, if exercised by ConThe powers conferred on Congress may be sub-granted in express terms. as they are more commonly called, the express and the implied powers. As instances of the former class may be mentioned the power to borrow money, to raise and support armies, and to coin money and regulate the value thereof. The implied or auxiliary powers of legislation are founded largely on that general provision which closes the enumeration of powers granted in express terms, by the declaration that Congress shall also "have power 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 question which this court is called upon to consider is, whether the authority to make the notes of the United States a lawful tender in payment of debts is to be found in Congress under either of these classes of legislative powers. As one of the elements of this question, and in order to negative any idea that the exercise of such a power would be an invasion of the rights reserved to the States, it may be as well to say at the outset, that this is among the subjects of legislation forbidden to the States by the Constitution. Among the unequivocal utterances of that instrument on this subject of legal tender is that which declares that "No State shall coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts;" thus removing the whole matter from the domain of State legislation. No such prohibition is placed upon the power of Congress on this subject, though there are, as I have already said, matters expressly forbidden to Congress; but neither this of legal tender, nor of the power to emit bills of credit or to impair the obligation of contracts, is among them. On the contrary, Congress is expressly authorized to coin money and to regulate the value thereof *Nov. 27, 1869. † Jan. 29, 1870. It being conceded, then, that the power under gress, be an invasion of any right reserved to the States, but one which they are forbidden to employ, and that it is not one in terms either tained as a law necessary and proper, at the time granted or denied to Congress, can it be susof these powers that are expressly granted, either it was enacted, for carrying into execution any to Congress or to the Government or to any department thereof? under the present Constitution there have been From the organization of the Government from time to time attempts to limit the powers granted by that instrument by a narrow and literal rule of construction, and these have been specially directed to the general clause which we have cited as the foundation of the auxiliary powers of the Government. It has been said that this clause, so far from authorizing the use of any means which could not have been used without it, is a restriction upon the powers necessarily implied by an instrument so general in its language. The doctrine is, that when an act of Congress is brought to the test of this clause of the Constitution, its necessity must be absolute, and its adaptation to the conceded purpose unquestion able. a law was also denied. Chief Justice Marshall | to adopt any which might be appropriate and said: "It is claimed under the authority to which were conducive to the end. This provismake all laws which shall be necessary and ion is made in a constitution intended to endure proper to carry into execution the powers vested for ages to come, and consequently to be adapted by the Constitution in the Government or in any to various crises of human affairs. To have department thereof. In construing this clause, prescribed the means by which the government it would be incorrect and would produce endless should in all future time execute its powers difficulties, if the opinion should be maintained would have been to change entirely the characthat no law was authorized which was not indis- ter of the instrument, and give it the properties pensably necessary to give effect to a specified of a legal code. It would have been an unwise power. Where various systems might be adopted attempt to provide by immutable rules for exifor that purpose, it might be said with respect to gencies which, if foreseen at all, must have been each that it was not necessary, because the end but dimly, and which can best be provided for might be attained by other means. Congress as they occur. To have declared that the best must possess the choice of means, and must be means shall not be used, but those alone without empowered to use any means which are in fact which the power given would be nugatory, conducive to the exercise of the power granted would have been to deprive the legislature of the by the Constitution." capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." It was accordingly held that, under the authority to pay the debts of the Union, it could pass a law giving priority for its own debts in cases of bankruptcy. But in the memorable case of McCulloch vs The State of Maryland, (4 Wheaton, 316,) the most exhaustive discussion of this clause is found in the opinion of the court by the same eminent expounder of the Constitution. That case involved, it is well known, the right of Congress to establish the Bank of the United States and to authorize it to issue notes for circulation. It was conceded that the right to incorporate or create such a bank had no specific grant in any clause of the Constitution, still less the right to authorize it to issue notes for circulation as money. But it was argued that, as a means necessary to enable the Government to collect, transfer, and pay out its revenues, the organization of a bank with this function was within the power of Congress. In speaking of the true meaning of the word "necessary" in this clause of the Constitution he says: Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without it? We think it does not. If reference be had to its use, in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient or useful or essential to another. To employ means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable." * * * "" The word necessary admits, he says, of all degrees of comparison. "A thing may be necessary, very necessary, absolutely or indispensably necessary." This word, then, like others, is used in various senses, and in its construction the subject, the context, the intention of the person using them are all to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress I have cited at unusual length these remarks of Chief Justice Marshall because, though made half a century ago, their applicability to the circumstances under which Congress called to its aid the power of making the securities of the Government a legal tender as a means of successfully prosecuting a war which without such aid seemed likely to terminate its existence, and to borrow money which could in no other manner be borrowed, and to pay the debt of millions due to its soldiers in the field, which could by no other means be paid, seem to be almost prophetic. If he had had clearly before his mind the future history of his country he could not have better characterized a principle which would in this very case have rendered the power to carry on war nugatory, which would have deprived Congress of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances by the use of the most appropriate means of supporting the Government in the crisis of its fate. But it is said that the clause under consideration is admonitory as to the use of implied powers, and adds nothing to what would have been authorized without it. The idea is not new, and is probably intended for the same which was urged in the case of McCulloch vs. The State of Maryland, namely, that instead of enlarging the powers conferred on Congress, or providing for a more liberal use of them, it was designed as a restriction upon the ancillary powers incidental to every express grant of power in general terms. I have already cited so fully from that case that I can only refer to it to say that this proposition is there clearly stated and refuted. Does there exist, then, any power in Congress or in the Government, by express grant, in the execution of which this legal-tender act was necessary and proper, in the sense here defined, under the circumstances of its passage? The power to declare war, to suppress insurrection, to raise and support armies, to provide and maintain a navy, to borrow money on the credit of the United States, to pay the debts of the Union, and to provide for the common defense and general welfare, are each and all distinctly and specifically granted in separate clauses of the Constitution. We were in the midst of a war which_called | casion without being made lawful tender for all these powers into exercise and taxed them debts. severely; a war which, if we take into account the increased capacity for destruction introduced by modern science and the corresponding increase of its cost, brought into operation powers of belligerency more potent and more expensive than any that the world has ever known. All the ordinary means of rendering efficient the several powers of Congress above mentioned had been employed to their utmost capacity, and with the spirit of the rebellion unbroken, with large armies in the field unpaid, with a current expenditure of over $1,000,000 per day, the credit of the Government nearly exhausted, and the resources of taxation inadequate to pay even the interest on the public debt, Congress was called on to devise some new means of borrowing money on the credit of the nation, for the result of the war was conceded by all thoughtful men to depend on the capacity of the Government to raise money in amounts previously unknown. The banks had already loaned their means to the treasury. They had been compelled to suspend the payment of specie on their own notes. The coin in the country, if it could all have been placed within the control of the Secretary of the Treasury, would not have made a circulation sufficient to answer army purchases and army payments, to say nothing of the ordinary business of the country. A general collapse of credit, of payment, and of business seemed inevitable, in which faith in the ability of the Government would have been destroyed, the rébellion would have triumphed, the States would have been left divided, and the people impoverished. The national government would have perished, and with it the Constitution which we are now called upon to construe with such nice and critical accuracy. That the legal-tender act prevented these disastrous results, and that the tender clause was necessary to prevent them, I entertain no doubt. It furnished instantly a means of paying the soldiers in the field and filled the coffers of the commissary and quartermaster. It furnished a medium for the payment of private debts, as well as public, at a time when gold was being rapidly withdrawn from circulation and the State-bank currency was becoming worthless. It furnished the means to the capitalist of buying the bonds of the Government. It stimulated trade, revived the drooping energies of the country, and restored confidence to the public mind. But what was needed was something more than the credit of the Government. That had been stretched to its utmost tension, and was clearly no longer sufficient in the simple form of borrowing money. Is there any reason to believe that the mere change in the form of the security given would have revived this sinking credit? On the contrary, all experience shows that a currency not redeemable promptly in coin, but dependent on the credit of a promiser whose resources are rapidly diminishing, while his liabilities are increasing, soon sinks to the dead level of worthless paper. As no man would have been compelled to take it in payment of debts, as it bore no interest, as its period of redemption would have been remote and uncertain, this must have been the inevitable fate of any extensive issue of such notes. But when by law they were made to discharge the function of paying debts, they had a perpetual credit or value equal to the amount of all the debts, public and private, in the country. If they were never redeemed, as they never have been, they still paid debts at their par value, and for this purpose were then, and always have been, eagerly sought by the people. To say, then, that this quality of legal tender was not necessary to their usefulness seems to be unsupported by any sound view of the situation. Nor can any just inference of that proposition arise from a comparison of the legal-tender notes with the bonds issued by the Government about the same time. These bonds had a fixed period for their payment, and the Secretary of the Treasury declared that they were payable in gold. They bore interest, which was payable semi-annually in gold, by express terms on their face, and the customs duties, which by law could be paid in nothing but gold, were sacredly pledged to the payment of this interest. They can afford no means of determining what would have been the fate of treasury notes designed to circulate as money, but which bore no interest, and had no fixed time of redemption, and by law could pay no debts, and had no fund pledged for their payment, The legal-tender clauses of the statutes under consideration were placed emphatically, by those who enacted them, upon their necessity to the further borrowing of money and maintaining the and navy. army It was done reluctantly and with hesitation, The results which followed the adoption of and only after the necessity had been demonthis measure are beyond dispute. No other ade-strated and had become imperative. Our statesquate cause has ever been assigned for the revival of government credit, the renewed activity of trade, and the facility with which the Government borrowed in two or three years, at reasonable rates of interest, mainly from its own citizens, double the amount of money there was in the country, including coin, bank notes, and the notes issued under the legal-tender acts. It is now said, however, in the calm retrospect of these events, that treasury notes suitable for circulation as money, bearing on their face the pledge of the United States for their ultimate payment in coin, would, if not equally efficient, have answered the requirement of the oc men had been trained in a school which looked upon such legislation with something more than distrust. The debates of the two houses of Congress show that on this necessity alone could this clause of the bill have been carried, and they also prove, as I think, very clearly the existence of that necessity. The history of that gloomy time, not to be forgotten by the lover of his country, will forever remain the full, clear, and ample vindication of the exercise of this power by Congress, as its results have demonstrated the sagacity of those who originated and carried through this measure. Certainly it seems to the best judgment that I can bring to bear upon the subject that this law | The latter is a means directly conducive to the was a necessity in the most stringent sense in which that word can be used. But if we adopt the construction of Chief Justice Marshall and the full court over which he presided, a construction which has never to this day been overruled or questioned in this court, how can we avoid this conclusion? Can it be said that this provision did not conduce towards the purpose of borrowing money, of paying debts, of raising armies, of suppressing insurrection? or that it was not calculated to effect these objects ? or that it was not useful and essential to that end? Can it be said that this was not among the choice of means, if not the only means, which were left to Congress to carry on this war for national existence? Let us compare the present with other cases decided in this court. end to be attained, a means which attains the end more promptly and more perfectly than any other means can do. The former is a remote and uncertain means in its effect, and is liable to the serious objection that it interferes with State legislation. If Congress can, however, under its implied power, protect and foster this currency by such means as destructive taxation on State bank circulation, it seems strange, indeed, if it cannot adopt the more appropriate and the more effectual means of declaring these notes of its own issue, for the redemption of which its faith is pledged, a lawful tender in payment of debts. But it is said that the law is in conflict with the spirit if not the letter of several provisions of the Constitution. Undoubtedly it is a law impairing the obligation of contracts made before its passage. But while the Constitution forbids the States to pass such laws it does not forbid Congress. On the contrary, Congress is expressly authorized to establish a uniform system of bankruptcy, the essence of which is to discharge debtors from the obligation of their contracts; and in pursuance of this power Congress has three times passed such a law, which in every instance operated on contracts made before it was passed. Such a law is now in The creation of the United States Bank, and force, yet its constitutionality has never been especially the power granted to it to issue notes questioned. How it can be in accordance with for circulation as money, was strenuously resisted the spirit of the Constitution to destroy directly as without constitutional authority; but this the creditor's contract for the sake of the indicourt held that a bank of issue was necessary, vidual debtor, but contrary to its spirit to affect in the sense of that word as used in the Consti-remotely its value for the safety of the nation, it tution, to enable the Government to collect, to is difficult to perceive. transfer, and to pay out its revenues. If we can say judicially that to declare, as in the case of the United States vs. Fisher, that the debt which a bankrupt owes the Government shall have priority of payment over all other debts is a necessary and proper law to enable the Government to pay its own debts, how can we say that the legal-tender clause was not necessary and proper to enable the Government to borrow money to carry on the war? It was never claimed that the Government could find no other means to do this. It could not then be denied, nor has it ever been, that other means more clearly within the competency of Congress existed, nor that a bank of deposit might possibly have answered without a circulation. But because that was the most fitting, useful, and efficient mode of doing what Congress was authorized to do, it was held to be necessary by this court. Thé necessity in that case is much less apparent to me than in the adoption of the legal-tender clause. So it is said that the provisions, that private property shall not be taken for public use without due compensation, and that no person shall be deprived of life, liberty, or property without due course of law, are opposed to the acts under consideration. The argument is too vague for my perception by which the indirect effect of a great public measure, in depreciating the value of lands, stocks, bonds, and other contracts, renders such a law invalid as taking private property for public use or as depriving the owner of it without due course of law. In the Veazie Bank vs. Fenno, decided at the A declaration of war with a maritime power present term, this court held, after full consider-would thus be unconstitutional, because the value ation, that it was the privilege of Congress to of every ship abroad is lessened twenty-five or furnish to the country the currency to be used thirty per cent. and those at home almost as much. by it in the transaction of business, whether this The abolition of the tariff on iron or sugar would was done by means of coin, of the notes of the in like manner destroy the furnaces, and sink the United States, or of banks created by Congress; capital employed in the manufacture of these arand that, as a means of making this power of ticles. Yet no statesmen, however warm an adCongress efficient, that body could make this vocate of high tariff, has claimed that to abolish currency exclusive by taxing out of existence such duties would be unconstitutional as taking any currency authorized by the States. It was private property. said "that having, in the exercise of undoubted constitutional power, 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 appro- This whole argument of the injustice of the priate means." Which is the more appropriate law, an injustice which, if it ever existed, will be and effectual means of making the currency es- repeated by now holding it wholly void and of tablished by Congress useful, acceptable, perfect its opposition to the spirit of the Constitution, is -the taxing of all other currency out of exist- too abstract and intangible for application to ence, or giving to that furnished by the Gov- courts of justice, and is above all dangerous as a ernment the quality of lawful tender for debts? | ground on which to declare the legislation of Con If the principle be sound, every successive issue of government bonds during the war was void, because by increasing the public debt it made those already in private hands less valuable. gress void by the decision of a court. It would authorize this court to enforce theoretical views of the genius of the government, or vague notions of the spirit of the Constitution and of abstract justice, by declaring void laws which did not square with those views. It substitutes our ideas of policy for judicial construction, an undefined code of ethics for the Constitution, and a court of justice for the national legislature. Upon the enactment of these legal-tender laws they were received with almost universal acquiescence as valid. Payments were made in the legal-tender notes for debts in existence when the law was passed to the amount of thousands of millions of dollars, though gold was the only lawful tender when the debts were contratted. A great if not larger amount is now due under contracts made since their passage, under the belief that these legal tenders would be valid payment. The two houses of Congress, the President who signed the bill, and fifteen State courts, being all but one that has passed upon the question, have expressed their belief in the constitutionality of these laws. With all this great weight of authority, this strong concurrence of opinion among those who have passed upon the question, before we have been called to decide it, whose duty it was as much as it is ours to pass upon it in the light of the Constitution, are we to reverse their action, to disturb contracts, to declare the law void because the necessity for its enactment does not appear so strong to us as it did to Congress, or so clear as it was to other courts? Such is not my idea of the relative functions of the legislative and judicial departments of the Government. Where there is a choice of means, the selection is with Congress, not the court. If the act to be considered is in any sense essential to the execution of an acknowledged power, the degree of that necessity is for the legislature and not for the court to determine. In the case in Wheaton, from which I have already quoted so fully, the court says that "where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretences to such a power." This sound exposition of the duties of the court in this class of cases relieves me from any embarrassment or hesitation in the case before me. If I had entertained doubts of the constitutionality of the law, I must have held the law valid until those doubts became convictions. But as I have a very decided opinion that Congress acted within the scope of its authority, I must hold the law to be constitutional, and dissent from the opinion of the court. I am authorized to say that Mr. Justice Swayne and Mr. Justice Davis concur in this opinion. NOTE. When this decision was made the court consisted of eight judges, there being one vacancy, caused by the death of Judge Wayne, of Georgia. The five who concurred in the decision are Chief Justice Chase and Associate Justices Nelson, Clifford, Grier, and Field. Of these, the first three are understood to hold the legal-tender clause unconstitutional for all purposes, and the latter two as unconstitutional as to prior contracts only. B Mr. Chief Justice Chase delivered the opinion of the court. The necessity of adequate provision for the financial exigencies created by the late rebellion suggested to the administrative and legislative departments of the Government important changes in the systems of currency and taxation which had hitherto prevailed. These changes, more or less distinctly shown in administrative recommendations, took form and substance in legisla tive acts. We have now to consider, within a limited range, those which relate to circulating notes and the taxation of circulation. At the beginning of the rebellion the circulating medium consisted almost entirely of bank notes issued by numerous independent corporations variously organized under State legislation, of various degrees of credit, and very unequal resources, administered often with great, and not unfrequently with little skill, prudence, and integrity. The acts of Congress then in force prohibiting the receipt or disbursement, in the transactions of the national Government, of anything except gold and silver, and the laws of the States requiring the redemption of bank notes in coin on demand, prevented the disappearance of gold and silver from circulation. There was then no national currency except coin; there was no general regulation of any other by national legislation, and no national taxation was imposed in any form on the State bank circulation. The first act authorizing the emission of notes by the Treasury Department for circulation was that of July 17, 1861. The notes issued under this act were treasury notes, payable on demand in coin. The amount authorized by it was fifty millions of dollars, and was increased by the act of February 12, 1862, to sixty millions. On the 31st of December, 1861, the State banks suspended specie payment. Until this time the expenses of the war had been paid in coin, or in the demand notes just referred to, and for sometime afterwards they continued to be paid in these notes, which, if not redeemed in coin, were received as coin in the payment of duties. Subsequently, on the 25th of February, 1862,? a new policy became necessary in consequence of the suspension and of the condition of the country, and was adopted. The notes hitherto issued, as has just been stated, were called treas *See the act of December 27, 1854, to suppress small notes in the District of Columbia, 10 U. S. Stats., 599. †12 U. S. Stats., 259. 12 U. S. Stats., 338. 12 U. S. Stats., 345. |