tution, means only coined money, i. e., gold and silver coins. Now Justice Field says in his dissenting opinion in the last legal-tender case, that it is a settled rule of interpretation that "the same term occurring in different parts of the same instrument shall be taken in the same sense, unless there be something in the context indicating that a different meaning be intended." Now if this be true it overthrows his case, since it is evident that "money," in the clause "no money shall be drawn from the treasury except in consequence of appropriations to be made by law," includes treasury notes, greenbacks, national bank notes, etc., etc., in which case, on Field's theory, "money," in the phrase to coin money, would also include all these varieties of notes.

This is not the argument which the court in its last decision advances in support of its views, though it refers to it as entitled to consideration. The power to make a paper currency was subsumed by the court under the power to borrow money. 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 these notes as currency is as broad as the like power over a metallic currency under the power to coin money and regulate the value thereof.

The actual decision of the court deserves to be quoted in full: The Congress, as the legislature of a sovereign nation, being expressly empowered by the constitution to lay and collect taxes to pay the debt 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, (all of which let it be noticed is admitted now to be constitutional doctrine), 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 effect the powers vested by this constitution in the government of the United States. Such being our conclusion in matter of law, the question of expediency is not for us to decide, they add in effect.

It is not perfectly clear from this passage exactly on what ground they place their decision, but that can be ascertained from other portions of the opinion. It is evident, however, from a reading of the opinion of the court, that the interpretation which Mr. Bancroft and Mr. Justice Field himself put upon the words of the court are not justifiable, when they would make the court appear to say that the Government of the United States has all the sovereign powers which other governments enjoy, and which are not expressly prohibited to it. Since the court

explicitly says that it is a government of limited powers, only that when the constitution gives to it sovereign powers in any matter, as for instance, borrowing money, and does not accompany it with restrictions as to the method of exercising it, it has all the rights of other similar governments at the time of the adoption of the constitution. And this is the doctrine of every court since the days of Marshall on every similar question which has come before it.

I cannot resist the conviction that the result of this long discussion in the Supreme Court foreshadows the ultimate decision of more and more of our constitutional students until it will be as generally accepted to be sound constitutional law, as is the decision of the court that the government has the power "to emit bills" under the constitution. A progress from a minority in 1869 to a majority of one in 1870, for the constitutionality, and to an almost unanimous opinion (eight votes being in favor and only one against) fourteen years later, properly forecasts, I believe, public opinion outside since, as a matter of law, it is bound to prevail in the long run.

The arguments against this cumulative proof that the constitution vests this power in the Federal government, all prove too much, and if pursued to their logical conclusions, they would result in over-turning some of the most widely acknowledged views of the Supreme Court.

As to its effects on the political development of the country, I think personally that it will be good. It is desirable that somewhere in the body politic should be placed the full and complete power over the legaltender. On this topic the words of Alexander Ham

ilton on a similar subject commend themselves to me. In No. 34 of the Federalist he says:

"In pursuing this inquiry we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil governments are not to be framed on a calculation of existing exigencies; but upon a combination of these with the probable exigencies of ages according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power proper to be lodged in the National government, from an estimate of its immediate necessities. There ought to be a capacity to provide for future contingencies as they may happen, and as these are illimitable in their nature, so it is impossible safely to limit that capacity.”

The time may come, as it has already been here, when it may be desirable to alter the legal-tender. To deny this power to the Federal government is to deny it to any part of our legislative power; requiring an amendment to the constitution before any change could be made. The objection that if such a power exists it is liable to abuse, has of course much force, but it proves too much since it might be urged in regard to nearly all other powers. If circumstances should ever again arise under which the government should find itself obliged to have recourse to the use of this power, we may be sure it would be resorted to (constitutional amendment or no amendment) and the evil result attending a breach of the constitution would be manifold more than any evil results likely to arise owing to the exercise of the acknowledged power. Moreover, we now see that we must rely on the education of the people in sound doctrines in order to protect us against the evils of the exercise of such a power, instead of on the more or less weak bulwarks of constitutional prohibition, and I, for one, believe in the light of our financial history for the last twenty years, that we are safe in assuming that the people can be trusted in the future as in the past

to maintain a sound currency under all conditions, except possibly those where circumstances would compel a resort to such an evil instrument as an excessive paper currency—no matter what might stand in the constitution.

Whatever one may think of this, however, whatever his views upon the expediency or folly of giving to Congress the power of issuing paper currency, I feel sure that the oftener he considers the question from the only proper point of view, viz. the legal or constitutional one-the more irresistible will be the conviction that the court, in this last case, has finally given us a decision which will stand the test of time, because, in full harmony with the great principles of constitutional interpretation which were laid down by our early jurists, were followed by all later courts, and have been accepted by the people as fundamental to our political system.

NOTE.

The authorities specially consulted in preparing this paper, aside from the argument before the courts and the opinions of the courts themselves, are the following:

(1.) Mr. Bancroft's "Plea for the Constitution;" (2.) Mr. McMurtrie's "Observations on Mr. Bancroft's Plea;" (3.) Articles in Law Magazines, (a) H. H. Neill in Columbia Jurist, Vol. II, No. 1; (b) D. H. Chamberlain in American Law Review, April 1884; (c) T. H. Talbot in American Law Review, Vol. XVIII, p. 618; (d) Prof. Thayer in Harvard Law Review, Vol. I; (4.) Elliot's Debates, and similar sources.

Statements of arguments have been taken in some cases almost verbatim et literatim from one or another of the above sources.