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acter of the reasoning in the last and the two former
The discussion in both the first cases turned on what was essentially an economic point. The Court in the case of Hepburn vs. Griswold, held that conferring the legal-tender character upon the notes of the government was not a necessary or appropriate means of carrying out any of the functions of the government, because as a matter of fact this circumstance did not improve the quality of the notes as currency. This view was supported by what was essentially an economic argument on the nature and functions of a government currency. In the decision Knox vs. Lee, the court joined direct issue on this very point, and maintained that the legal-tender character was necessary to make these notes serve the purpose for which they were issued, and that they were therefore a necessary and proper means of carrying into effect an acknowledged power of the Federal Government.
In the last case the court quietly passes over this whole argument and rests the decision upon what is much more a legal or constitutional ground. In both the former cases the court was evidently influenced, to a large extent, by what it supposed would be the economical evils of a contrary decision. In the last the court refused to ask itself the question whether the issue of legal-tender notes is or is not, economically speaking, a good or bad thing, and confined itself simply to the question whether Congress had the power or not.
This is, indeed, one of the interesting circumstances connected with this whole question, whether before the court, or in the press and on the rostrum before the general public. The court is besought by those
opposed to the policy of issuing such currency to save the country from the evil effects of legal-tender notes, by declaring that Congress has no power to issue them. This of course is no proper appeal to make to the court. It has to decide a question of law and not of policy ; and no matter how clear the court might be that such and such a policy might be injurious, it has no business to place its veto on it, provided the body establishing the legislation has the power as a matter of law so to do. It will be found, I think, that this element of expediency of the exercise of the power in a certain way has largely influenced many in their judgement as to the actual conferring of the power as a matter of law.
This is acknowledged in a recent pamphlet devoted to an examination of Mr. Bancroft's “Onslaught on the Court,” by Mr. McMurtrie of the Philadelphia bar-a man who is reputed to be one of the most clear-headed constitutional lawyers in the country. In one passage in the pamphlet referred to, he says, that he had always supposed that the decision of the question hinged really on whether one would take the strictly legal or the statesman's view of the subject, which of course means whether one would regard it as a question of law, which it really is, or of politics, which it is not.
Let us now look squarely at the case as it appeared before the court, with a view of arriving at an opinion as to the merits of the case from a constitutional point of view. In presenting the arguments, I shall use the best statement of them which I have been able to find, whether in the opinion of the court, the argument of counsel or the brochures of publicists.
The Constitution wounded in the House of its Friends.
Congress had actually passed a law making its notes a legal-tender. This creates a presumption clear and distinct in favor of the constitutionality of the measure, according to the uniform decision of the courts of last resort in our country. I quoted above the opinion of the court as to the necessity of having a clear demonstration of the unconstitutionality of a measure, before it would upset the action of Congress. Chief Justice Chase himself, at the very session in which the Hepburn case was decided, held in Veazie Bank vs. Fenno, that the practice of the government was one of the elements in deciding a constitutional case. In a word then, the burden of proof rests in a legal point of view, entirely upon those who attempt to establish the unconstitutionality of any given act of Congress.
In answer to this, it is held in the first place that the constitution, on its face, does not confer the power to issue legal-tender notes. If by this is meant that it does not confer that power in so many words, then it will of course be admitted. But it does not confer the power to carry on war, or to suspend the habeas corpus act, or to pass penal laws to sustain its legislation, or to establish a national bank, or to emit treasury notes, or to exercise the right of eminent
Great deference has also been paid in all cases to the action of the Executive Department, where its officers have been called upon under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations and endeavored to keep within the letter and spirit of the constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequence that may resu om disregarding it, is fairly entitled to turn the judicial mind.(Cooley's Limit. p. 83.)
domain, or to sue or to make contracts, or to collect statistics other than the mere numbering of the persons, or to construct canals or railroads, or assist in their construction, or to establish for itself a priority of payment over debts due to other creditors, or to establish observatories, or to erect light houses, etc., etc.—all of which are now acknowledged to be part and parcel of the powers conferred by the consti. tution.
If, however, what is meant is that the power is not included in any power expressly granted, then this is a question for investigation and examination. Has Congress any power whatever over the legal tender of the country? It must be admitted that, judging by the uniform practice of the government and the decisions of the courts, it has the power to make gold and silver, or any other metal, a legal tender. Now whence does it derive this power? It is certainly not expressly granted, for it is quite distinct from the power to coin money and regulate the value thereof. It can only be inferred as an incidental power. It would seem, indeed, from an examination of all the clauses bearing on the subject, both those relating to the restrictions on the states and those conferring powers in regard to it on the national government, that whatever power there is to make a legal tender has been confered on the Federal government. We shall return to this point later."
It is urged that it was the intention of the framers of the constitution to prohibit the Federal government from exercising any such power. If this were really so, it would have been a very simple matter to incorlimited powers.
1Cf. McMurtrie's argument.
porate their views in a clause like that referring to the states, forbidding them to make anything but gold and silver coin a legal-tender in the payment of debts. It may be replied to this that they thought they had, since they did not grant it in express terms, and the new government was to be a government of
This is not satisfactory, however, since the whole country gave, at the time of the adoption of the constitution, good evidence that they were afraid that a government had been constituted with they knew not what powers, as is amply shown by the first ten amendments.
However this may be, the whole argument from intention is met in the following way:
1. The intention has little to do with the question, the real point being not what they intended to do, but what they actually did do, as a matter of fact. No court of law allows intention to do a thing to be plead against a plain failure to do it. Even in the construction of wills, contracts, etc., the question is not what the person wanted to do, but what he did do. In other words intention is to be inferred from actually what is said. If any other principle were adopted there would be no way of settling questions of dispute where the parties to a contract, for example, have different ideas as to what the instrument means, since each one intended to do a different thing. Take a case, such as occasionally occurs in private law, and nearly always in public law, where the parties are trying to overreach each the other. Each hopes to get such provisions into the law or contract as will redound to his own benefit, or incorporate his own ideas. Now it is evident that no court could undertake to compare these various intentions, and see