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We cannot doubt that such contracts should be people had, and their use was a matter of almost enforced in the courts of the United States, after absolute necessity; and this use gave them a the restoration of peace, to the extent of their sort of value, insignificant and precarious enough just obligation. The first question, therefore, it is true, but always having a sufficiently definite must receive an affirmative answer.

relation to gold and silver, the universal measThe second question, whether evidence can be ures of value, so that it was always easy to ascerreceived to prove that a promise made in one tain how much gold and silver was the real of the insurgent States, and expressed to be for equivalent of a sum expressed in this currency, the payment of dollars, without qualifying words, In the light of these facts it seems hardly less was in fact made for the payment of any other than absurd to say that these dollars must be than lawful dollars of the United States ? is regarded as identical in kind and value with the next to be considered.

dollars which constitute the money of the United It is quite clear that a contract to pay dollars, States. We cannot shut our eyes to the fact that made between citizens of any State of the Union, they were essentially different in both respects ; while maintaining its constitutional relations and it seems to us that no rule of evidence propwith the national Government, is a contract to erly understood requires us to refuse, under the pay lawful money of the United States, and can- circumstances, to admit proof of the sense in not be modified or explained by parol evidence. which the word dollar is used in the contract But it is equally clear, if in any other country before us. Our answer to the second question is, coins or notes denominated dollars should be therefore, also in the affirmative. We are clearly authorized of different value from the coins or of opinion that such evidence must be received in notes which are current here under that name, respect to such contracts, in order that justice that, in a suit upon a contract to pay dollars

, may be done between the parties, and that the made in that country, evidence would be admitted party entitled to be paid in these Confederate to

prove what kind of dollars were intended, and, dollars can recover their actual value at the time if it should turn out that foreign dollars were and place of the contract in lawful money of the meant, to prove their equivalent value in lawful United States. money of the United States. Such evidence does We do not think it necessary to go into a denot modify or alter the contract. It simply ex- tailed examination of the evidence in the record plains an ambiguity, which, under the general in order to vindicate our answer to the third rules of evidence, may be removed by parol evi- question. It is enough to say that it has left no dence.

đoubt in our minds that the note for $10,000, to We have already seen that the people of the enforce payment of which suit was brought in insurgent States, under the Confederate govern- the circuit court, was to be paid, by agreement ment, were, in legal contemplation, substantially of the parties, in Confederate notes. in the same condition as inhabitants of districts It follows that the decree of the circuit court of a country occupied and controlled by an in- must be reversed, and the cause remanded, for vading belligerent. The rules which would ap- further hearing and decree, in conformity with ply in the former case would apply in the latter; this opinion. and as in the former case the people must be regarded as subjects of a foreign power, and con. On the Constitutionality of Legal-Tender Clause tracts among them be interpreted and enforced

as relates to Contracts made prior to its adopwith reference to the conditions imposed by the

tion. conquerer, so in the latter case the inhabitants must be regarded as under the authority of the

DECEMBER TERM, 1869.. insurgent belligerent power actually established as the government of the country, and contracts H.P. Hepburn, plöffs in error,

Susan P. Hepburn and Henry made with them must be interpreted and enforced

appeals of the State with reference to the condition of things created Henry A. Griswold.

of Kentucky. by the acts of the governing power.

(1.) Construed by the plain import of their It is said, indeed, that under the insurgent terms and the manifest intent of the legislature, government the word dollar had the same mean-the statutes of 1862 and 1863, which make United ing as under the Government of the United States; States notes a legal tender in payment of debts, that the Confederate notes were never made a public and private, apply to debts contracted legal tender, and, therefore, that no evidence can before as well as to debts contracted after enactbe received to show any other meaning of the ment. word when used in a contract.

(2.) The cases of Lane County vs. Oregon, But it must be remembered that the whole Bronson vs. Rodes, and Butler vs. Horwitz, in condition of things in the insurgent States was which it was held that, upon a sound construcmatter of fact, rather than matter of law, and, astion of those statutes, neither taxes imposed by matter of fact, these notes, payable at a future State legislation nor dues upon contracts for the and contingent day, which has not arrived and payment or delivery of coin or bullion are incan never arrive, were forced into circulation as cluded by legislative intent under the descripdollars, if not directly by the legislation, yet tion of debts, public and private, are approved indirectly and quite as effectually by the acts of and reaffirmed. the insurgent government. Considered in them- (3.) When a case arises for judicial determinaselves, and in the light of subsequent events, tion, and the decision depends on the alleged inthese notes had no real value, but they were consistency of a legislative provision with the made current as dollars by irresistible force. Constitution, it is the plain duty of the Supreme They were the only measure of value which the Court to compare the act with the fundamental

In error to the court of

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law, and if the former cannot, upon a fair con-, United States, except duties on imports, and of struction, be reconciled with the latter, to give all claims and demands against the United States effect to the Constitution rather than the statute. of every kind whatsoever, except for interest

(31.) There is in the Constitution no express upon bonds and notes, which shall be paid in grant of legislative power to make any descrip-coin; and shall also be lawful money and a legal tion of credit currency a legal tender in payment tender in payment of all debts, public and priof debts.

vate, within the United States, except duties on (4.) The words “all laws necessary and proper imports and interest as aforesaid." * for carrying into execution” powers expressly This clause has already received much considgranted or vested have in the Constitution aeration here, and this court has held that, upon sense equivalent to that of the words: laws, not a sound construction, neither taxes imposed by absolutely necessary indeed, but appropriate, State legislation, f nor demands upon contracts plainly adapted to constitutional and legitimate which stipulate in terms for the payment or deends, which are not prohibited, but consistent livery of coin or bullion, I are included by legiswith the letter and spirit of the Constitution; lative intention under the description of debts laws really calculated to effect objects intrusted public and private. to the Government.

We are now to determine whether this de(5.) Among means appropriate, plainly adapt- scription embraces debts contracted before as well ed, not inconsistent with the spirit of the Consti- as after the date of the act. tution, nor prohibited by its terms, the legislature It is an established rule for the construction has unrestricted choice; but no power can be of statutes that the terms employed by the legisderived by implication from any express power lature are not to receive an interpretation which to enact laws as means for carrying it into exe-. conflicts with acknowledged principles of justice cution unless such laws come within this descrip- and equity, if another sense, consonant with those tion.

principles, can be given to them. (6.) The making of notes or bills of credit a But this rule cannot prevail where the intent legal' tender in payment of pre-existing debts is is clear. Except in the scarcely supposable case, not a means appropriate, plainly adapted, or where a statute sets at naught the plainest prereally calculated to carry into effect any express cepts of morality and social obligation, courts power vested in Congress, is inconsistent with must give effect to the clearly ascertained legisthe spirit of the Constitution, and is prohibited lative intent, if not repugnani to the fundamental by the Constitution.

law ordained in the Constitution. (7.) The clause in the acts of 1862 and 1863 Applying the rule just stated to the act under which makes United States notes a legal tender consideration, there appears to be strong reason in payment of all debts, public and private, is, for construing the word debts as having referso far as it applies to debts contracted before the ence only to debts contracted subsequent to the passage of those acts, unwarranted by the Con- enactment of the law. For no one will question stitution.

that the United States notes, which the act makes (8.) Prior to the 25th of February, 1862, all a legal tender in payment, are essentially unlike contracts for the payment of money, not expressly in nature, and, being irredeemable in coin, are stipulating otherwise, were, in legal effect and necessarily unlike in value, to the lawful money universal understanding, contracts for the pay- intended by parties to contracts for the payment ment of coin, and, under the Constitution, the of money made before its passage. parties to such contracts are respectively entitled The lawful money then in use and made a to demand and bound to pay the sums due, ac- legal tender in payment consisted of gold and cording to their terms, in coin, notwithstanding silver coin. the clause in that act, and the subsequent acts The currency in use under the act, and deof like tenor, which make United States notes a clared by its terms to be lawful money and a legal tender in payment of such debts.

legal tender, consists of notes or promises to pay, Mr. Chief Justice Chase delivered the opinion form for circulation, and protected against coun

impressed upon paper prepared in convenient of the court.

terfeiting by suitable devices and penalties. The question presented for our determination The former possess intrinsic value, determined by the record in this case is, whether or not the by the weight and fineness of the metal; the latpayee or assignee of a note, made before the 25th ter have no intrinsic value, but a purchasing of February, 1862, is obliged by law to accept in value, determined by the quantity in circulation, payment United States notes, equal in nominal by general consent to its currency in payments, amount to the sum due according to its terms, and by opinion as to the probability of redempwhen tendered by the maker or other party tion in coin. bound to

pay
it.

Both derive, in different degrees, a certain And this requires, in the first place, a construc- additional value from their adaptation to circution of that clause of the first section of the act | lation by the form and impress given to them of Congress passed on that day which declares under national authority and from the acts makthe United States notes, the issue of which was ing them respectively a legal tender. authorized by the statute, to be a legal tender in

Contracts for the payment of money, made payment of debts.

before the act of 1862, had reference to coined The entire clause is in these words: "And such money, and could not be discharged, unless by notes, herein authorized, shall be receivable in payment of all taxes, internal duties, excises, gon, 7 Wall., 71. Bronson vs. Rodes, 7 Wall., 229; But

* 12 United States Stats., 315. † Lane County vs. Oredebts, and demands of every kind due to the ler vs. Horwitz, 7 Wall., 258.

consent, otherwise than by tender of the sum ernment, and may be fairly considered, independdue in coin. Every such contract, therefore, was ently of considerations belonging to the law of in legal import a contract for the payment of contracts for the delivery of specified articles, as coin.

sanctioning special private contracts for like payThere is a well-known law of currency, that ments, without which, indeed, the provisions renotes or promises to pay, unless made conve- lating to government payments could hardly niently and promptly convertible into coin at the have practical effect. will of the holder, can never, except under un- This consideration, however, does not apply to usual and abnormal conditions, be at par in cir- the matter now before us. There is nothing in culation with coin.

the terms of the act which looks to any differIt is an equally well-known law that depreci- ence in its operation on different descriptions of ation of notes must increase with the increase debts payable generally in money, that is to say, of the quantity put in circulation and the diminu- in dollars and parts of a dollar. These terms, tion of confidence in the ability or disposition to on the contrary, in their obvious import, include redeem. Their appreciation follows the reversal equally all debts not specially expressed to be of these conditions. No act making them a legal payable in gold or silver, whether arising under tender can change materially the operation of past contracts and already due, or arising under these laws.

such contracts and to become due at a future day, Their force has been strikingly exemplified in or arising and becoming due under subsequent the history of the United States notes. Begin- contracts. A strict and literal construction, inning with a very slight depreciation when first deed, would, as suggested by Mr. Justice Story, issued, in March, 1862, they sark in July, 1864, in respect to the same word used in the Constito the rate of two dollars and eighty-five cents tution, limit the word "debts” to debts existing; for a dollar in gold, and then rose until recently a and, if the construction cannot be accepted bedollar and twenty cents in paper became equal to cause the limitation sanctioned by it cannot be a gold dollar.

reconciled with the obvious scope and purpose of Admitting, then, that prior contracts are with the act, it is certainly conclusive against any in the intention of the act, and assuming that interpretation which will exclude existing debts the act is warranted by the Constitution, it fol- from its operation. lows that the holder of a promissory note, made The same conclusion results from the exception before the act, for a thousand dollars, payable, of interest on loans and duties on imports from as we have just seen, according to the law and the effect of the legal-tender clause." This exaccording to the intent of the parties, in coin, was ception affords an irresistible implication that no required, when depreciation reached its lowest description of debts, whenever contracted, can point, to accept in payment a thousand note dol- be withdrawn from the effect of the act, if not lars, although with the thousand coin dollars, included within the terms or the reasonable indue under the contract, he could have purchased tent of the exception. on that day two thousand eight hundred and fifty And it is worthy of observation in this consuch dollars Every payment, since the passage nection that in all the debates to which the act of the act, of a note of earlier date, has presented gave occasion in Congress, no suggestion was ever similar, though less striking, features.

made that the legal-tender clause did not apply Now, it certainly needs no argument to prove as fully to contracts made before as to contracts that an act compelling acceptance in satisfaction made after its

passage. of any other than stipulated payment alters These considerations seem to us conclusive. arbitrarily the terms of the contract and impairs We do not think ourselves at liberty, therefore, its obligation, and that the extent of impairment to say that Congress did not intend to make the is in the proportion of the inequality of the pay- notes authorized by it a legal tender in payment ment accepted under the constraint of the law to of debts contracted before the passage of the act. the payment due under the contract.

We are thus brought to the question whether Nor does it need argument to prove that the Congress has power to make notes issued under practical operation of such an act is contrary to its authority a legal tender in payment of debts justice and equity.

which when contracted were payable by law in It follows that no construction which attrib- gold and silver coin. utes such practical operation to an act of Con- The delicacy and importance of this question gress is to be favored, or indeed to be admitted, has not been overstated in the argument. This if any other can be reconciled with the manifest court always approaches the consideration of intent of the legislature.

questions of this nature reluctantly; and its conWhat, then, is that manifest intent? Are we stant rule of decision has been, and is, that acts at liberty, upon a fair and reasonable construc- of Congress must be regarded as constitutional tion of the act, to say that Congress meant that unless clearly shown to be otherwise. the word “debts" used in the act should not But the Constitution is the fundamental law of include debts contracted prior to its passage ? the United States. By it the people have created

In the case of Bronson vs. Rodes we thought a government, defined its powers, prescribed their ourselves warranted in holding that this word, limits, distributed them among the different deas used in the statute, does not include obliga- partments, and directed, in general, the manner tions created by express contracts for the pay of their exercise. ment of gold and silver, whether coined or in No department of the Government has any bullion. This conclusion rested, however, mainly other powers than those thus delegated to it by on the terms of the act, which not only allow, but require, payments in coin by or to the Gov

*1 Story on Const., % 921.

the people. All the legislative power granted by nied, that the plaintiff was entitled to judgment the Constitution belongs to Congress; but it has according to his claim, unless bound by a constino legislative power which is not thus granted. tutional law to accept the notes as coin. And the same observation is equally true in its Thus two questions were directly presented: application to the executive and judicial powers Were the defendants relieved by the act from the granted respectively to the President and the obligation assumed in the contract? Could the courts. All these powers differ in kind, but not plaintiff be compelled by a judgment of the court in source or in limitation. They all arise from to receive in payment a currency of different na, the Constitution and are limited by its terms. ture and value from that which was in the con

It is the function of the judiciary to interpret templation of the parties when the contract was and apply the law to cases between parties as made ? they arise for judgment. It can only declare The court of appeals resolved both questions in what the law is, and enforce, by proper process, the negative, and the defendants in the original the law thus declared.

suit seek the reversal of that judgment by writ But, in ascertaining the respective rights of of error.' parties, it frequently becomes necessary to con- It becomes our duty, therefore, to determine sult the Constitution; for there can be no law whether the act of February 25, 1862, so far as it inconsistent with the fundamental law. No en- makes United States notes a legal tender in payactment not in pursuance of the authority, con- ment of debts contracted prior to its passage, is ferred by it can create obligations or confer rights. constitutional and valid or otherwise. Under a For such is the express declaration of the Consti- deep sense of our obligation to perform this duty tution itself, in these words :

to the best of our ability and understanding, we " The Constitution, and the laws of the United shall proceed to dispose of the case presented by States which shall be made in pursuance thereof, the record. and all treaties made, or which shall be made, We have already said, and it is generally, if under the authority of the United States, shall not universally, conceded, that the Government be the supreme law of the land; and the judges of the United States is one of limited powers, and of every State shall be bound thereby, anything that no department possesses any authority not in 'the constitution or laws of any State to the granted by the Constitution. contrary notwithstanding."

It is not necessary, however, in order to prove Not every act of Congress, then, is to be re- the existence of a particular authority to show a garded as the supreme law of the land ;znor is it particular and express grant. The design of the by every act of Congress that the judges are Constitution was to establish a government combound. This character and this force belong petent to the direction and administration of the only to such acts as are "made in pursuance of affairs of a great nation, and, at the same time, to the Constitution."

mark, by sufficiently definite lines, the sphere of When, therefore, a case arises for judicial de- its operations. To this end it was needful only termination, and the decision depends on the to make express grants of general powers, coupled alleged inconsistency of a legislative provision with a further grant of such incidental and auxwith the fundamental law, it is the plain duty of iliary powers as might be required for the exerthe court to compare the act with the Constitu- cise of the powers expressly granted. These tion, and if the former cannot, upon a fair con- powers are necessarily extensive. It has been struction, be reconciled with the latter, to give fourid, indeed, in the practical administration of effect to the Constitution rather than the statute the government, that a very large part, if not This seems so plain that it is impossible to make the largest part, of its functions have been perit plainer by argument. If it be otherwise, the formed in the exercise of powers thus implied. Constitution is not the supreme law; it is neither But the extension of power by implication was necessary nor useful, in any case, to inquire regarded with some apprehension by the wise whether or not any act of Congress was passed men who framel and by the intelligent citizens in pursuance of it; and the oath which every who adopted the Constitution. This apprehenmember of this court is required to take, that he sion is manifest in the terms by which the grant

will administer justice without respect to per- of incidental and auxiliary powers is made. All sons, and do equal right to the poor and the rich, powers of this nature are included under the deand faithfully perform the duties incumbent upon scription of power to make all laws necessary him to the best of his ability and understanding, and proper for carrying into execution the powers agreeably to the Constitution and laws of the expressly granted to Congress or vested by the United States,” becomes an idle and unmeaning Constitution in the government or in any of its form.

departments or officers." The case before us is one of private right The The same apprehension is equally apparent in plaintiff in the court below sought to recover of the Xth article of the Amendments, which declares the defendants a certain sum expressed on the that "the powers not delegated to the United face of a promissory note. The defendants in- States by the Constitution, nor prohibited by it sisted on the right, under the act of February to the States, are reserved to the States or the 25, 1862, to acquit themselves of their obliga- people." tion by tendering in payment a sum nominally We do not mean to say that either of these equal in United States notes. But the note had constitutional provisions is to be taken as rebeen executed before the passage of the act, and stricting any exercise of power fairly warranted the plaintiff insisted on his right,under the Con by legitimate derivation from one of the enumerstitution to be paid the amount due in gold and ated or express powers,

The first was undoubtsilver. And it has not been and cannot be de-edly introduced to exclude all doubt in respect

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to the existence of implied powers; while the standard of value by which all other values may words “necessary and proper were intended to be measured, or, in other words, to determine have a "sense,” to use the words of Mr. Justice what shall be lawful money and a legal tender, Story," at once admonitory and directory," and is in its nature and of necessity a governmental to require that the means used in the execution power. It is in all countries exercised by the of an express power “should be bona fide appro- government. In the United States, so far as it priate to the end."* The second provision was relates to the precious metals, it is vested in Conintended to have a like admonitory and directory gress by the grant of the power to coin money. bense, and to restrain the limited government But can a power to impart these qualities to established under the Constitution from the exer- notes, or promises to pay money, when offered cise of powers not clearly delegated or derived in discharge of pre-existing debts, be derived from by just inference from powers so delegated. the coinage power, or from any other power ex

It has not been maintained in argument, nor, pressly given? indeed, would any one, however slightly con- It is certainly not the same power as the power versant with constitutional law, think of main- to coin money. Nor is it in any reasonable or sattaining, that there is in the Constitution any isfactory sense an appropriate or plainly adapted express grant of legislative power to make any means to the exercise of that power. Nor is there description of credit currency a legal tender in more reason for saying that it is implied in, or payment of debts.

incidental to, the power to regulate the value of We must inquire then whether this can be coined money of the United States, or of foreign done in the exercise of an implied power. coins. This power of regulation is a power to

The rule for determining whether a legislative 'determine the weight, purity, form, impression, enactment can be supported as an exercise of an and denomination of the several coins, and their implied power was stated by Chief Justice Mar- relation to each other, and the relations of forshall

, speaking for the whole court, in the case eign coins to the monetary unit of the United of McCullough vs. The State of Maryland, † and States. the statement then made has ever since been ac- Nor is the power to make notes a legal tender cepted as a correct exposition of the Constitution. the same as the power to issue notes to be used His words were these : “Let the end be legiti- as currency. The old Congress, under the Artimate, let it be within the scope of the Constitu- cles of Confederation, was clothed by express tion, and all means which are appropriate, which grant with the power to emit bills of credit, which are plainly adapted to that end, which are not are in fact notes for circulation as currency; and prohibited, but consistent with the letter and yet that Congress was not clothed with the power spirit of the Constitution, are constitutional." to make these bills a legal tender in payment. And in another part of the same opinion the And this court has recently held that the Conpractical application of this rule was thus illus- gress under the Constitution, possesses as incitrated : “Should Congress, in the execution of dental to other powers, the same power as the its powers, adopt measures which are prohibited old Congress to emit bills or notes; but it was by the Constitution, or should Congress, under expressly declared at the same time that this the pretext of executing its powers, pass laws for decision concluded nothing on the question of the accomplishment of objects not intrusted to legal tender. Indeed, we are not aware that it the government, it would be the painful duty of has ever been claimed that the power to issue this tribunal, should a case requiring such a de- bills or notes has any identity with the power to cision come before it, to say that such an act was make them a legal tender. On the contrary, the not the law of the land. But where the law is whole history of the country refutes that notion. not prohibited, and is really calculated to effect The States have always been held to possess the any of the objects intrusted to the government, power to authorize and regulate the issue of bills to undertake here to inquire into the degree of for circulation by banks or individuals, subject, its necessity would be to pass the line which as has been lately determined, to the control of circumscribes the judicial department, and tread Congress, for the purpose of establishing and on legislative ground.”$

securing a national currency; and yet the States It must be taken then as finally settled, so far are expressly prohibited by the Constitution from as judicial decisions can settle anything that the making anything but gold and silver coin a legal words “all laws ne essary and proper for carry- tender. This seems decisive on the point that ing into execution” powers expressly granted or the power to issue notes and the power to make vested, have in the Constitution a sense equiva- them a legal tender are not the same power, and lent to that of the words: laws not absolutely that they have no necessary connection with necessary indeed, but appropriate, plainly adapt- each other. ed to constitutional and legitimate ends; laws But it has been maintained argument that not prohibited, but consistent with the letter and the power to make United States notes a legal spirit of the Constitution; laws really calculated tender in payment of all debts is a means approto effect objects intrusted to the government. priate and plainly adapted to the execution of

The question before us, then, resolves itself the power to carry on war, of the power to reguinto this: Is the clause which makes United late commerce, and of the power to borrow States notes a legal tender for debts contracted money. If it is, and is not prohibited, nor inconprior to its enactment a law of the description sistent with the letter or spirit of the Constitustated in the rule ?

tion, then the act which makes them such legal It is not doubted that the power to establish a tender must be held to be constitutional.

Let us, then, first inquire whether it is an ap* 2 Story on the Const., p. 142,2 1253. †4 Wheaton 421. 4 Wheat., 423.

propriate and plainly adapted means for carry

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