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reason, which was seemingly the only one which occurred to the judge for his opinion does not of course exist under our present constitution, by which this power is expressly prohibited to the states.
Webster's opinion is also quoted and made very much of. It is exceedingly interesting to study Webster's opinion on this topic, for it serves to show several important points in regard to the subject. The opinion commonly quoted is an expression used by him in a debate with Benton, in which Benton twitted him with being willing to abolish the money of the constitution, etc. It was not at all necessary for him in that connection to join issue with Benton on the general question, and like a skillful debater, he granted whatever was not necessary to his argument. We have, however, luckily, a formal opinion
. prepared by him on this very topic shortly afterward, by which he declared he was willing to stand or fall, as expressing his most matured convictions on this important topic.
He laid down four propositions, as follows:
1. The coinage power includes the power to maintain along with the coin a paper currency.
2. Congress has power to emit bills of credit.
3. The power to regulate commerce carries with it the power to provide a paper currency for the whole country.
4. The power of Congress to emit bills of credit is derived from the prohibition on the states. These were all sub-propositions in support of a main proposition that it was the duty of Congress to provide such a currency for the country. The logical inference from these propositions, in regard to the power of Congress over the legal-tender, were first drawn in the case of Jiullard vs. Greenman, in the year 1884.
Story is also quoted. From his commentaries doubtless, for as a judge on the bench in the same year as Webster announced his mature convictions, viz. : 1837, in the case of Briscoe vs. the Bank, (11 Peters, 348) he supported Webster's views, at least so far as related to the power of Congress over a paper as well as a coin currency.
Thirty-three years later, in the celebrated case of Veazie Bank vs. Fenno, the court held the soundness of Webster's views, and practically approved his first three propositions.
Fourteen years later the court again finds the question before it in a more advanced state, viz. : Can Congress impart a legal-tender character to the currency which it is thus enabled to provide ? And almost unanimously the court decides that such currency, being as before decided a constitutional currency, Congress might give to it any legal character which properly belongs to currency as such, it not being prohibited by the constitution.
So much for what may be called the negative argument. It seems to me plain that the case of those who maintain that Congress has exceeded its power, in making paper money legal-tender, is not and can not be made out. In other words that, to use the expression of the court, they have not “succeeded in demonstrating clearly and beyond question that such power is forbidden by the constitution or not conferred.” It can scarcely be said, even at the most,
. that they do more than raise a doubt in regard to the matter, and this as we have seen, is not sufficient. There are various corroborative arguments which I must pass over.
On the other hand there is a positive argument in favor of the view that the constitution confers this power on Congress, which should not be overlooked. It is evident from a consideration of the constitution as a whole, that the constitution does confer all the power in regard to the currency which is conferred on any element in our system. If sovereignty in regard to the currency is not conferred on Congress, then it has certainly not been conferred at all. Now, if we follow out the precedents already given us by the early interpreters of the constitution, and confirmed by the decisions of many a later one in construing the constitution, we shall have no difficulty, I think, in showing pretty clearly that this power was actually conferred, and that Congress was actually right in so considering it.
In the first place, in order to ascertain the meaning of constitutional phrases, we are compelled to examine the history of cotemporaries, and particularly that of the English nation. The constitution is filled with phrases which are absolutely unintelligible except as they are explained by the course of history. In construing such an instrument as the constitution, we may expect to find, says Mr. McMurtrie, terms which had been used as embodying royal or imperial prerogatives. In conferring or limiting powers in the constitution, no words were used which were unfamiliar to English ears. Almost every term was a word of art, the meaning of which could be ascertained only by reference to what it meant in the development of English political and private law. Consider the terms law and equity, bills of attainder, habeas corpus, freedom of the press and of speech and many others. The only way to ascertain the meaning of these terms is to go to English law; outside of that they have no meaning at all. Take, moreover, such grants as that making the President commander-in-chief of the army and navy. How is it possible to find out how much was granted under this phrase, except by having regard to what it meant in English law and in the customs and habits of civilized Europe. Our ancestors were a hard-headed practical race, which used these terms in well defined meanings, or at least regarded as a matter of course, that the meaning was to be ascertained in a regularly defined method.
Now it is a conclusion borne out by all the decisions of our courts, that the meaning of such grants as were given, the meaning of terms used in them, etc., was to be found by references to the custom and habits of other civilized nations. If sovereignty over any matter is committed to the national government, then the content of that form of sovereignty is to be determined by reference to what it contained in other civilized nations, and especially in England. Even Mr. Field, who dissented from the last decision of the court in the legal-tender case, on the ground that there could be no incidental powers of sovereignty in the case of a limited government, at the same term of court held, in the case of U. S. vs. Jones, 109 U. S.
As Cooley puts it:
It must not be forgotten, in construing our constitutions, that in many particulars they are not the legitimate successes of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history, and when we find them expressed in technical words and words of art, we must suppose these words to be employed in their technical sense.
513, that the right of eminent domain was an incident of sovereignty. In a word, it seems that the position of the court in the last case is absolutely unassailable on principles of law or politics, that when a particular sovereign power is granted, the only mode of ascertaining how it may be exercised, i. e., what the grant meant to convey, is to inquire what was the usage among the civilized nations in respect of that power. And the right to the same usage then vests in the United States government, restrained only by restrictions imposed by that instrument itself.
The only question then which we have before us is, what the right to coin money” meant at that time. This, fortunately, we can ascertain easily from the literature and practice on the subject to be found in England and on the continent at that time. It is pretty well proven that the right to coin money or right of coinage was a general phrase in common use at the time, and for a long time before the Revolution, to designate sovereign power in regard to the currency. It was used as an ordinary means of indicating that certain princes had the complete sovereignty in regard to the circulating medium; and that this included, as a matter of law and fact, the right to declare anything the government pleased to be a legal tender, is evident from the financial history of every European country.
To put it in a nutshell then, the right to coin money meant sovereign power over the currency, (as it was used at the time) and this power was conferred on the general government, and it carried with it in the absence of restrictions the same sweeping power which other sovereignties had at the time.
It is held by some that “money," under the consti