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to secure a sound and uniform currency for the country must be futile." 8 Wall. 549; 101 U. S., 6.
It appears to us to follow, as a logical and necessary consequence, that Congress has the power to issue the obligations of the United States is such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. The power, as incident to the power of borrowing money and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution of the United States. The governments of Europe, acting through the monarch or the legislature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction against the issue in England, without his license, of notes purporting to be public paper money of Hungary. Austria v. Day, 2 Giff. 628, and 3 D. F. & J. 217. This power of issuing bills of credit, and making them, at the discretion of the legislature, a tender in payment of private debts, had long been exercised in this country by the several colonies and States; and during the Revolutionary War the States, upon the recommendation of the Congress of the Confederation, had made the bills issued by Congress a legal tender.
This position is fortified by the fact that Congress is vested with the exclusive exercise of the analogous power of coining money and regulating the value of domestic and foreign coin, and also with the paramount power of regulating foreign and interstate commerce. Under the power to borrow money on the credit of the United States, and to issue circulating notes for the money borrowed, its power to define the quality and force of those notes as currency is as broad as the like power over a metallic currency under the power to coin money and to regulate the value thereof. Under the two powers, taken together, Congress is authorized to establish a national currency, either in coin or in paper, and to make that currency lawful money for all purposes, as regards the national government or private individuals.
The power of making the notes of the United States a legal tender in payment of private debts, being included in the power to borrow money and to provide a national currency, is not defeated or restricted by the fact that its exercise may affect the value of private contracts. If, upon a just and fair interpretation of the whole Constitution, a particular power or authority appears to be vested in Congress, it is no constitutional objection to its existence, or to its exer
cise, that the property or the contracts of individuals may be incidentally affected. The decisions of this court, already cited, afford several samples of this.
Congress, as the legislature of a sovereign nation, being expressly empowered by the Constitution "to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States," and "to borrow money on the credit of the United States," and "to coin money and regulate the value thereof and of foreign coin;" and being clearly authorized, as incidental to the exercise of those great powers, to emit bills of credit, to charter national banks, and to provide a national currency for the whole people, in the form of coin, treasury notes, and national bank bills; and the power to make the notes of the government a legal tender in payment of private debts being one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress, consistent with the letter and spirit of the Constitution, and therefore, within the meaning of that instrument, “necessary and proper for carrying into execution the powers vested by this Constitution in the government of the United States."
It follows that the act of May 31, 1878, ch. 146, is constitutional and valid; and that the Circuit Court rightly held that the tender in treasury notes, reissued and kept in circulation under the act, was a tender and lawful money in payment of the defendant's debt to the plaintiff.
Note.-See also Veazie Bank v. Fenno, page 48.
THE WAR POWER OF CONGRESS.
2 BLACK. 635. 1862.
THE PRIZE CASES.
These case were brought to test the legality of the seizure of certain vessels found running the blockade of the Southern ports during the Civil War. (The details of the cases are omitted and only a portion of the opinion dealing with the war power of Congress is here cited.)
MR. JUSTICE GRIER delivered the opinion of the court.
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion of foreign nations, and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral.” Lord Stowell (1 Dodson, 247) observes: “It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other."
The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the Act of Congress of May 13, 1846, which recognized “a state of war as existing by the act of the Republic of Mexico." This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the act of the President in accepting the challenge without a previous formal declaration of war by Congress.
This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain , a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name, and no name given to it by him or them could change the fact.
Seizure of vessels was upheld.
THE POWER OF CONGRESS OVER THE TERRITORIES.
THE INSULAR TARIFF CASES.
DE LIMA v. BIDWELL.
182 U. S., 1. 1900.
This was an action in the Supreme Court of New York State by the firm of De Lima & Co., against the collector of the port of New York, G. R. Bidwell, to recover duties paid under protest upon certain importations of sugar from San Juan, Porto Rico, during the autumn of 1899, and subsequent to the cession of the island to the United States. (The Foraker Act of April 12, 1900, had not been passed when these goods were brought into New York). The case was removed to the Circuit Court of the United States, which decided in favor of the collector of the port and against De Lima & Co.'s right to recover the duties. De Lima & Co. then appealed the case to the Supreme Court of the United States, and claimed that the tariff duties could only be collected on goods coming from a foreign country and that Porto Rico since the Spanish-American war was no longer a foreign country.
MR. JUSTICE BROWN delivered the opinion of the court.
This case raises the single question whether territory acquired by the United States by cession from a foreign power remains a "foreign country” within the meaning of the tariff laws.
By Article II, section 2, of the Constitution, the President is given power, "by and with the advice and consent of the Senate, to make treaties, provided that two-thirds of the senators present concur; and by Art. VI, “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.” It will be observed that no distinction is made as to the question of supremacy between laws and treaties, except that both are controlled by the Constitution. A law requires the assent of both houses of Congress, and, except in certain specified cases, the signature of the President. A treaty is negotiated and made by the President, with the concurrence of two-thirds of the senators present, but each of them is the supreme law of the land.
One of the ordinary incidents of a treaty is the cession of territory. It is not too much to say it is the rule, rather than the excep
tion, that a treaty of peace, following upon a war, provides for a cession of territory to the victorious party. It was said by Chief Justice Marshall in American Ins. Co. v. Canter, 1 Pet. 511, 542; “The Constitution confers absolutely upon the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty.” The territory thus acquired is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an Act of Congress.
It follows from this that by a ratification of the treaty of Paris the island became territory of the United States—although not an organized territory in the technical sense of the word.
But whatever be the source of this power, its uninterrupted exercise by Congress for a century, and the repeated declarations of this court, have settled the law that the right to acquire territory involves the right to govern and dispose of it. That was stated by Chief Justice Taney in the Dred Scott case. In the more recent case of National Bank v. County of Yankton, 101 U. S., 129, it was said by Mr. Chief Justice Waite that Congress “has full and complete leglative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people under the Constitution of the United States, may do for the States." **** In short, when once acquired by treaty, it (the territory) belongs to the United States, and is subject to the disposition of Congress.
Territory thus acquired can remain a foreign country under the tariff laws only upon one of two theories; either that the word “foreign" applies to such countries as were foreign at the time the statute was enacted, notwithstanding any subsequent change in their condition, or that they remain foreign under the tariff laws until Congress has formally embraced them within the customs union of the States. The first theory is obviously untenable. While a statute is presumed to speak from the time of its enactment, it embraces all such persons or things as subsequently fall within its scope, and ceases to apply to such as thereafter fall without its scope. Thus, a statute forbidding the sale of liquors to minors applies not only to minors in existence at the time the statute was enacted, but to all who are subsequently born; and ceases to apply to such as thereafter reach their majority. So, when the Constitution of the United States declares in Art. I, Sec. 10, that the States shall not do certain things, this declaration operates not only upon the thirteen original States, but upon all who subsequently become such; and when Congress places certain restrictions upon the powers of a territorial legislature, such restrictions cease to operate the moment such territory is admitted as a State. By parity of reasoning a country ceases to be foreign the instant it becomes domestic. So, too, if Congress saw fit to cede one of its newly acquired territories (even assuming that it had the right to do so) to a foreign power, there could be no doubt that from the day of