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it would not do to excite opposition of friends of paper money by a prohibition, evidently thinking if nothing were said about it, that every man would be entitled to his own opinion on the subject. Ellsworth thought it was now a good time to shut and bar paper money out, but he did not indicate whether this would, in his view, be accomplished by simply saying nothing about it. Randolph was opposed to depriving the government of the power altogether. Wilson thought it would be good to preclude paper money, but did .not indicate how he thought it could be accomplished, whether by prohibition or by simply saying nothing about it. Butler was also in favor of taking away the power, but did not indicate how it had better be put. Read and Langdon were also opposed to giving this power to Federal Government, but did not indicate how their ideas shouid be incorporated.

The clause was then cut out by a vote of nine States to two. Madison adds a footnote that he decided the vote of Virginia by voting for cutting it out because he had become convinced that the government would have the power of issuing government notes as far as they could be safe and proper, and would only cut off the pretext for a paper currency. He does not give us the course of argument by which he arrived at this. Nor does he give us any clue as to whether the other members of the convention agreed with him. In a word, it is a purely private opinion of Mr. Madison which events have proved to be wrong.

This is not the first time that an individual, in drawing a public document, thinking that he had included and excluded certain things, found out afterwards, when the instrument came up for adjudication, that he had made a mistake.


It is evident that nothing definite can be inferred from this record as to the intention of the convention.'

About all that we can assert is that several members were in favor of refusing this power to the Federal government, that some were in favor of conferring it, that those who spoke on the topic were in doubt as to the effect of simply dropping the clause, and that as a matter of fact the clause was dropped. We have absolutely no means of knowing whether the majority of the delegates or states were opposed to granting this power, whether they thought that cutting out this clause would leave the question an open one, or, with Madison, that it

Cooley states the law as to the proper use of the proceedings of the convention, thus :

When the inquiry is directed to ascertaining the mischief designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument; where the proceedings clearly point out the purpose of the provision this aid will be valuable and satisfactory; but where the question is one of abstract meaning it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of the majority of the convention in adopting a particular clause. It is possible for a clause to appear so clear and unambiguous to the members as to require no discussion, and the few remarks concerning it may be positively misleading. It is also possible for a part of the members to take the clause in one sense and another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if this meaning appears not to be the one which the words would most naturally and obviously convey. For as a constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people.” (Cooley Limitations, p. 80.)

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would give us all the benefits and none of the evils of a paper currency, or whether they thought that the government would still have the power under other grants, and that they could safely afford to let the matter rest, or whether they thought anything at all about the matter. One thing, however, is significant, and that is that several members thought that if the clause to emit bills on the credit of the United States were left standing, it would carry with it, in the absence of a special prohibition, as a matter of course, the power to make them legal-tender, and others thought that the power to emit bills would be inferred under the borrowing power. As a matter of fact, the power of the government to emit bills of credit is as well acknowledged as any other power of the Federal legislative, or, as Chief Justice Chase decided in Veazie Bank vs. Fenno, 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, and, that too, though the record distinctly shows that a clause conferring this power was struck out of the constitution as first presented after some debate.

There is, I suppose, little doubt that many of the most eminent men of the revolution thought that the power of making treasury notes a legal tender should not be granted to the Federal government. But their ideas before they went into the convention, have nothing, of course, to do with what was actually achieved. As the result of discussion a compromise was accepted, and like many another compromise the meaning of the instrument can not be ascertained by consulting those who are interested in a certain interpretation by securing the general acceptance of which they would have gained their case.

As to what the early men thought the constitution, as actually adopted, really did say on this topic, we also have no satisfactory evidence; but such as there is of it is rather in favor of the view that legal-tender power was conferred on Congress by the constitution. When we look in the Federalist, for example, to find out what was said on this point, we find curiously enough nothing whatever upon the subject. It must be a matter of surprise to every one, that if the case were so clearly made out as it claimed to be by those who hold this view, there should be no mention of the subject in this important series of papers. If the leading men of all parties were so clear in their ideas as to the importance of refusing this power of making a legal-tender, and were so confident that it really had been done, and it had really occupied such an important position in the public mind, it is remarkable that there should be absolutely no express reference to the matter.

It is also astonishing, if the view of those who think the power of making anything but gold and silver coin a legal-tender was denied the Federal government were correct, that there are so very few traces of any reference to the fact in the current discussions of the time in the conventions or in the press, especially if the general interest in the subject active as they would have us believe. There are almost no notices at all, even of the fact that paper emissions were forbidden to the states. Luther Martin's letter only proves that he was doubly mistaken, since he speaks of the erasure of the clause oto emit bills” as the denial of such power to Congress, when events have proven that he was mistaken., Of contemporary opinions as to this point, the one of Hamilton, expressed in 1790, December 13th, as Secretary of the Treasury, in a letter to the House of Representatives, is important. He says : “ The emitting of paper money by authority of the government is wisely prohibited to the individual states by the national constitution; and the spirit of that prohibi

1; tion ought not to be disregarded by the Government of the United States." Here in the very act of opposing the exercise of the power, he conceded its existence. He virtually admits the authority of Congress to do what he thinks they ought not to do as a matter of policy.1

The appeal is also made to the opinion of commentators and jurist and statesmen from the beginning of the Government down to the present.

Marshall is first appealed to. The court in the last decision shows however pretty plainly that Marshall's opinions contain nothing adverse to the power of Congress to issue legal-tender notes. Even in the case of the Articles of Confederation, which said explicitly that all powers not expressly delegated to the United States were retained by the states, Marshall was not willing to say that they did not confer the right to make the notes a legal-tender. He spoke very guardedly, saying simply that Congress did not, as a matter of fact, make the notes a legal-tender; “perhaps," he adds, they could not do so," and as if giving a ground for this opinion, he remarks further, that this power resided in the states. But even this

1“Contemporary construction can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” (Story in Const. § 407

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