- Preface to the Second Edition.
- State and Federal Control of Persons and Property. Vol. I.
- Chapter I.: Scope of the Government Control and Regulation of Personal Rights.
- § 1.: Police Power—defined and Explained.—
- § 2.: The Legal Limitations Upon Police Power.—
- § 3.: Construction of Constitutional Limitations.—
- § 4.: The Principal Constitutional Limitations.—
- § 5.: Table of Private Rights.—
- Chapter II.: Government Regulation of Personal Security.
- § 10.: Security to Life.—
- § 11.: Capital Punishment, When Cruel and Unusual.—
- § 12.: Security to Limb and Body—general Statement.—
- § 13.: Corporal Punishment—when a Cruel and Unusual Punishment.—
- § 14.: Personal Chastisement In Certain Relations.—
- § 15.: Battery In Self-defense.—
- § 16.: Abortion.—
- § 17.: Compulsory Submission to Surgical and Medical Treatment.—
- § 18.: Security to Health—legalized Nuisance.—
- § 19.: Security to Reputation—privileged Communications. 3 —
- § 20.: Privilege of Legislators.—
- § 21.: Privilege In Judicial Proceedings.—
- § 22.: Criticism of Officers and Candidates For Office.—
- § 23.: Publications Through the Press.—
- § 24.: Security to Reputation—malicious Prosecution.—
- § 25.: Advice of Counsel, How Far a Defense.—
- Chapter III.: Personal Liberty.
- § 26.: Personal Liberty—how Guaranteed.—
- Chapter IV.: Government Control of Criminal Classes.
- § 27.: The Effect of Crime On the Rights of the Criminal—power of State to Declare What Is a Crime.—
- § 28.: Due Process of Law.—
- § 29.: Bills of Attainder.—
- § 30.: Ex Post Facto Laws.—
- § 31.: Cruel and Unusual Punishment In Forfeiture of Personal Liberty and Rights of Property.—
- § 32.: Preliminary Confinement to Answer For a Crime—commitment of Witnesses.—
- § 33.: What Constitutes a Lawful Arrest.—
- § 34.: Arrests Without a Warrant.—
- § 35.: The Trial of the Accused.—
- § 36.: The Trial Must Be Speedy.—
- § 37.: Trials Must Be Public.—
- § 38.: Accused Entitled to Counsel.—
- § 39.: Indictment By Grand Jury Or By Information.—
- § 40.: The Plea of Defendant.—
- § 41.: Trial By Jury—legal Jeopardy.—
- § 42.: Right of Appeal.—
- § 43.: Imprisonment For Crime—hard Labor—control of Convicts In Prison.—
- § 43 A.: Convict Lease System.—
- Chapter V.: The Control of Dangerous Classes, Otherwise Than By Criminal Prosecution.
- § 44.: Confinement For Infectious and Contagious Diseases.—
- § 45.: The Confinement of the Insane.—
- § 46.: Control of the Insane In the Asylum.—
- § 47.: Punishment of the Criminal Insane.—
- § 48.: Confinement of Habitual Drunkards.—
- § 49.: Police Control of Vagrants.—
- § 50.: Police Regulation of Mendicancy.—
- § 51.: Police Supervision of Habitual Criminals.—
- § 52.: State Control of Minors.—
- Chapter VI.: Regulations of the Rights of Citizenship and Domicile.
- § 53.: Citizenship and Domicile Distinguished.—
- § 54.: Expatriation.—
- § 55.: Naturalization.—
- § 56.: Prohibition of Emigration.—
- § 57.: Compulsory Emigration.—
- § 58.: Prohibition of Immigration.—
- § 59.: The Public Duties of a Citizen.—
- Chapter VII.: State Regulation of Morality and Religion.
- § 60.: Crime and Vice Distinguished—their Relation to Police Power.—
- § 61.: Sumptuary Laws.—
- § 62.: Church and State—historical Synopsis.—
- § 63.: Police Regulation of Religion—constitutional Restrictions.—
- § 64.: State Control of Churches and Congregations.—
- § 65.: Religious Criticism and Blasphemy Distinguished.—
- § 66.: Permissible Limitations Upon Religious Worship.—
- § 67.: Religious Discrimination In Respect to Admissibility of Testimony.—
- § 68.: Sunday Laws.—
- Chapter VIII.: Freedom of Speech and Liberty of the Press.
- § 81.: Police Supervision Prohibited By the Constitutions.—
- Chapter IX.: Regulation of Trades and Occupations.
- § 85.: General Propositions.—
- § 86.: Prohibition As to Certain Classes.—
- § 87.: Police Regulation of Skilled Trades and Learned Professions.—
- § 88.: Regulation of Practice In the Learned Professions.—
- § 89.: Regulation of Sale of Certain Articles of Merchandise.—
- § 90.: Regulations to Prevent Fraud.—
- § 91.: Legal Tender and Regulation of Currency.—
- § 92.: Free Coinage of Silver and the Legal Tender Decisions.—
- § 93.: Legislative Restraint of Importations—protective Tariffs.—
- § 94.: Liberty of Contract, a Constitutional Right.—
- § 95.: Compulsory Formation of Business Relations—common Carriers and Innkeepers Exceptions to the Rule—theaters and Other Places of Amusement.—
- § 96.: Regulation of Prices and Charges.—
- § 97.: Later Cases On Regulating Prices and Charges—regulations Must Be Reasonable—what Is a Reasonable Regulation, a Judicial Question.—
- § 98.: Police Regulation of the Labor Contract.—
- § 99.: Regulation of Wages of Workmen—mode of Measuring Payment—compulsory Insurance and Membership In Benefit Societies—release From Liability For Injuries to Employees.—
- § 100.: Regulation of Wages of Workmen, Continued—time of Payment—medium of Payment—fines and Deductions For Imperfect Work—mechanics’ Lien and Exemption of Wages.—
- § 101.: Prohibition of Employment of Aliens—exportation of Laborers—importation of Alien Laborers Under Contract—chinese Labor—employers Compelling Workmen to Leave Unions.—
- § 102.: Regulating Hours of Labor.—
- § 103.: Regulations of Factories, Mines and Workshops—sweatshops. 1 —
- § 104.: Period of Hiring—breach Or Termination of Labor Contract—compulsory Performance of Labor Contract—requirement of Notice of Discharge—employers Required to Give Statement of Reasons For Discharge.—
- § 105.: Regulations of the Business of Insurance.—
- § 106.: Usury and Interest Laws.—
- § 107.: Prevention of Speculation.—
- § 108.: Prevention of Combinations In Restraint of Trade.—
- § 109.: A Combination to “corner” the Market.—
- § 109a.: Contracts Against Liability For Negligence Prohibited.—
- § 110.: Common Law Prohibition of Combinations In Restraint of Trade Restated.—
- § 111.: Industrial and Corporate Trusts, As Combinations In Restraint of Trade.—
- § 112.: Modern Statutory Legislation Against Trade Combinations, Virtual Monopolies, and Contracts In Restraint of Trade.—
- § 113.: Different Phases of the Application of Anti-trust Statutes—factor’s System—control of Patents—combinations Against Dishonest Debtors—agreements to Sell Only to Regular Dealers—combinations of Employers to Resist Combinations of Employees—departmen
- § 114.: Labor Combinations—trades Unions—strikes.—
- § 115.: Strikes, Continued, and Boycotts.—
- § 116.: Wagering Contracts Prohibited.—
- § 117.: Option Contracts, When Illegal.—
- § 118.: General Prohibition of Contracts On the Ground of Public Policy.—
- § 119.: Licenses.—
- § 120.: Prohibition of Occupations In General. 5 —
- § 121.: Prohibition of Trade In Vice—social Evil, Gambling, Horse-racing.—
- § 122.: Prohibition of Trades For the Prevention of Fraud—adulterations of Goods—harmful Or Dangerous Goods—prohibition of Sale of Oleomargarine.—
- § 123.: Prohibition of Ticket-brokerage—ticket-scalping Prohibited and Punished.—
- § 124.: Prohibition of Sale of Game Out of Season—prohibition of Export of Game.—
- § 125.: Prohibition of the Liquor Trade.—
- § 126.: Police Control of Employments In Respect to Locality. 3 —
- § 127.: Monopolies—general Propositions.—
- § 128.: Monopolies and Exclusive Franchises In the Cases of Railroads, Bridges, Ferries, Street Railways, Gas, Water, Lighting, Telephone and Telegraph Companies.—
- § 129.: Patents and Copyrights, How Far Monopolies.—
- § 130.: When Ordinary Occupations May Be Made Exclusive Monopolies—saloons—banking—insurance—peddling—building and Loan Associations—restriction of Certain Trades to Certain Localities—slaughterhouses—markets.—
- § 131.: National, State and Municipal Monopolies.—
Legal tender and regulation of currency.—
Although Sociologists, like Herbert Spencer, may doubt the necessity, and condemn the practice, of the regulation of currency by the government; and although the private coining of money may be permitted without any detriment to the public interests, arising from the general debasement of the coin: no constitutional question can arise in respect to the exclusive exercise by government of the power to coin money in the United States; for the United States constitution gives to the national government this exclusive right. But apart from any special constitutional provision, and on general principles of constitutional law, this phase of police power may be justified on the plea of public necessity. The most devoted disciple of the laissez faire doctrine will admit that so delicate a matter as the determination of the standard value of the current coin can only be obtained by governmental regulation. In the colonial days, and in the days of the confederation, one of the greatest evils, and the most serious obstacle to commercial intercourse between the States, was the almost endless variety of coin that passed current in different places, and the difficulty was increased by the employment of the same names to denote, in different places, coins of different values. If the States and colonies could not, without the interference of the general government, procure for themselves coin of uniform value, it would be still more difficult for the commercial world to attain the same end. The only safe course is to vest in the supreme power—in this country, in the United States government—the exclusive control of the coin.
The necessity for a public coinage may not be so great as the State regulation of the value of the coins, but the danger of a general debasement of the coin, and the great possibilities of committing fraud upon persons who generally would not have the means at hand for detecting the fraud, would be a sufficient justification of the denial to private individuals of the right to coin money.
As already stated, in respect to the exclusive power of the United States, to coin money and to regulate the value thereof, no doubt can arise. But grave difficulties are met with, in determining the limitations upon the power of the government to declare what shall be a legal tender in the payment of debts. In fact, the governmental power to coin money is mainly incidental to the regulation of the matter of legal tender. Of course, the power to facilitate exchange by the creation of an ample currency does not necessarily involve the creation of legal tender. For example, national bank notes are currency, but they are not legal tender. But the need of a determination by law, what shall constitute a legal tender for the payment of debts, led inevitably to the demand for the creation of a sufficient quantity of the things, called money, which are required by law to be tendered in payment of debts. I do not mean to say that the demand for a legal tender preceded, in point of historical sequence, the need of a currency. But from the standpoint of police power, the necessity of a legal tender requires a regulation of the currency of the government, instead of the latter bearing the relation of cause to the former.
Now, what can government declare to be a legal tender? There can be no doubt that the government has the power to declare its own coin to be legal tender. And it may, no doubt, provide that certain foreign coins shall be legal tender at their real value, as estimated by Congress; nor can it be doubted that the several States have no right to declare anything else but gold and silver to be a legal tender. But it is not an easy matter to determine the limitations of the power of the United States government, in the matter of legal tender. The question has assumed a practical form by the enactment of laws by Congress, in 1862, 1863, and 1878, declaring the treasury notes of the United States to be legal tender in payment of all debts, public and private. The acts of 1862 and 1863 were passed when the country was rent in twain by a gigantic civil war, which threatened the existence of the Union; and they were prompted by the desire to force the notes into circulation, and procure funds and materials for the prosecution of the war. In reporting the first act to the Senate, the chairman of the committee on finance (Sumner) said: “It is put on the ground of absolute, overwhelming necessity; that the government has now arrived at that point when it must have funds, and those funds are not to be obtained from ordinary sources, or from any of the expedients to which we have heretofore had recourse, and therefore, this new, anomalous and remarkable provision must be resorted to in order to enable the government to pay off the debt that it now owes, and afford circulation which will be available for other purposes.” In other words, in order to furnish the government with the means, which the exigencies of war demanded, Congress made use of a power which is possessed by the government for promoting the welfare of the commercial world, by providing a uniform mode of settlement of debts. The establishment of a legal tender has for its object the bestowal of benefits upon the private interests of individuals, and was not intended to be a source of revenue. It cannot be doubted that this is the real object of a legal tender. The question then arises, can Congress employ this power for the purpose of increasing the revenue?
The question has been before the United States Supreme Court several times. In the first case, the acts of 1862-63, were declared to be unconstitutional in so far as they make the treasury notes of the United States legal tender in payment of existing debts. In the Legal Tender Cases, the opinion of the court in Hepburn v. Griswold, was overruled, and the acts of 1862 and 1863, in making the treasury notes legal tender, were declared to be constitutional whether they applied to existing or subsequent debts, the burden of the opinion being that Congress had the right, as a war measure, to give to these notes the character of legal tender. In 1878, Congress passed an act, providing for the re-issue of the treasury notes, and declared them to be legal tender in payment of all public and private debts. In a case, arising under the act of 1878, the Supreme Court has finally affirmed the opinion set forth in 12 Wallace, and held further that the power of the government to make the treasury notes legal tender, when the public exigencies required, being admitted, it becomes a question of legislative discretion, when the public welfare demands the exercise of the power. This decision will probably constitute the final adjudication of this question; and while it must be considered as settled, at least for the present, that the United States has the power to make its treasury notes legal tender, it is but proper that, in a work on police power, the rule of the court should be criticised and tested by the application of the ordinary rules of constitutional law. The decision is so important, that full extracts from the opinion of the court, and the dissenting opinion of Justice Field, have been inserted in the note below.
A perusal of the decisions in these leading cases will disclose the fact that the members of the courts, and the attorneys in the causes, have not referred to the same constitutional provision for the authority to make the treasury notes legal tender. Some have claimed it to be a power, implied from the power to levy and carry on war, others refer it to the power to borrow money, etc. If the power to make the treasury notes legal tender cannot be shown to be prohibited by the United States constitution, then there would be very little difficulty in determining the power of the government in the premises. The power to make and regulate legal tender being denied by the United States constitution to the States, the power must be exercised, if at all, by the United States government; and the United States government can exercise it, if the power is not prohibited by the constitution altogether, even though it is not expressly or impliedly delegated to the general government, at least if the position elsewhere taken in respect to the powers of the United States be correct.
But it is my opinion that, while the constitution of the United States does not prohibit Congress from making any other coins than gold and silver, legal tender, it does prohibit it from giving the character of legal tender to the United States treasury notes, or to anything else, which does not have and pass for, its intrinsic value. When gold or silver, or any other article of value is coined and is made a legal tender for the payment of all debts, at its true value, it is a very reasonable exercise of police power; for no one is deprived of his property against his will and without due process of law. It is merely a determination by law what coin is genuine, and which, therefore, was bargained for, by the parties to the contract. And when the value of the metal is inclined to be slightly variable from time to time, as in the case of silver, relative to gold, the establishment of a uniform value, when justly made, is likewise no unreasonable regulation. But if a money of a given denomination should be coined, of less value than existing coins of the same denomination, and the people were required to take them at their nominal value, it would be a fraud upon the people, and I can see no reason why such a law should not be declared unconstitutional. Congress has full power to change the value of coins from time to time, but no law is constitutional which compels the creditor of existing debts to receive these coins of less value, when the parties contemplated payment in the older coins of a higher value, but of the same denomination. If Congress should coin a dollar in gold or silver, whose intrinsic value was only eighty-five cents in existing coin, no law can compel its acceptance as equivalent to a dollar, worth one hundred cents. The enforcement of such a law would deprive creditors of fifteen per cent of their loans, without due process of law, and hence in violation of the constitution of the United States. Mr. Justice Gray says in Juillard v. Greenman, that such a law would not infringe any constitutional limitation, but it seems to me to be a plain violation of the constitutional provision, that “no man shall be deprived of his life, liberty or property, without due process of law.”
“Undoubtedly Congress has power to alter the value of coins issued, either by increasing or diminishing the alloy they contain; so it may alter at its pleasure their denominations; it may hereafter call a dollar an eagle, and it may call an eagle a dollar. But if it be intended to assert that Congress may make the coins changed the equivalent of those having a greater value in their previous condition, and compel parties contracting for the latter to receive coins with diminished value, I must be permitted to deny any such authority. Any such declaration on its part would be not only inoperative in fact but a shameful disregard of its constitutional duty. As I said on a former occasion: ‘The power to coin money as declared by this court is a great trust devolved upon Congress, carrying with it the duty of creating and maintaining a uniform standard of value throughout the Union, and it would be a manifest abuse of the trust to give to the coins issued by its authority any other than their real value. By debasing the coins, when once the standard is fixed, is meant giving to the coins by their form and impress a certificate of their having a relation to that standard different from that which, in truth, they possess: in other words, giving to the coins a false certificate of their value.” But even in such a case, where a contract stipulates for the payment of lawful money, and the law should subsequently alter the value of the coin, so that the lawful money in use, when the contract is to be performed, is of less intrinsic value; and by construction of law the contract is supposed to refer to what is lawful money at the time of performance; there still may not be any absolutely arbitrary deprivation of private property. But when the government undertakes to make its own notes legal tender, a thing which has no intrinsic value, whose value as currency depends upon the public credit of the government, and rises and falls with it; instead of its being the reasonable exercise of a police regulation, the object of which is to facilitate exchange, and provide a satisfactory legal settlement of private obligations by providing a uniform currency of recognized value, it is an arbitrary taking of private property, compelling private individuals to become creditors of the government against their will.
Making the treasury notes legal tender is not induced by any desire to provide an easy method of making legal settlements of obligations, the only legitimate object of establishing a legal tender of any kind, but for the purpose of increasing the revenue of the government. The Supreme Court, in the opinion of Justice Gray, freely acknowledge this to be the purpose, and justify the exercise of the power by claiming it to be implied from the power to borrow money. This clearly is unjustifiable under any known rules of constitutional construction. The acts of 1862, and 1863, were justified as war measures, on the plea of necessity. It may be that the government of a country in a state of war, when its very existence is threatened, may compel its citizens to become creditors of the government. It may issue its treasury notes, and compel the creditors of the government of all classes to receive its notes in payment of its debts. It may, possibly, appropriate to its own use the materials necessary for the prosecution of the war, paying for them at their market value in its treasury notes. It may compel the citizens to serve in its land and naval forces, and be paid for their services in treasury notes. But it is difficult to see how it facilitates the borrowing of money by the government to make the treasury notes legal tender in the payment of debts between private parties. It has been claimed that the character of legal tender increases the purchasing power of the treasury notes. If this were so, it would be a faint justification of the law as a war measure. But it is not true. The purchasing power of a government treasury note, or of any other paper currency, depends upon the popular confidence in its ready convertibility into specie. There is no difference in the purchasing power of treasury notes and national bank notes, although one is made legal tender and the other is not. Both are received as the equivalent of a gold or silver dollar, because of the confidence in the convertibility of both of them into coin; whereas, during the civil war, when many brave and true men were fearful of the result and the popular confidence in the durability of the United States government was greatly shaken; although the notes were made legal tender, they sunk steadily in value, until at one time, one dollar in gold was the equivalent of two and a half dollars in treasury notes. The treasury notes of the Confederates States fared worse, because their credit was impaired to a greater degree. Therefore, we must conclude that even as a war measure it was unconstitutional to make the treasury notes legal tender in payment of private debts, because it did not in any sense assist them in borrowing money or procuring money’s equivalent, for the prosecution of the war.
It is probable that the latest decision of the Supreme Court on this subject will be treated by the present generation as final. But inasmuch as decisions of courts, even of last resort, do not make law, but are merely evidence, albeit the highest and usually the most reliable kind of evidence, of what the law is, it is the duty and within the province of jurists to combat error in decisions as in any other source of law, even when there is very little hope of a general adoption of their views.
See U. S. Const., art. I., § 8, in which it is provided that Congress shall have power “to coin money, regulate the value thereof, and of foreign coin.”
See art. I., § 10.
Cong. Globe, 1861-2, Part I., 764.
Hepburn v. Griswold, 8 Wall. 603.
12 Wall. 457.
Juillard v. Greenman, 110 U. S. 421.
“By the Constitution of the United States, the several States are prohibited from coining money, emitting bills of credit, or making anything but gold and silver coin a tender in payment of debts. But no intention can be inferred from this to deny to Congress either of these powers. Most of the powers granted to Congress are described in the eighth section of the first article; the limitations intended to be set to its powers, so as to exclude certain things which might be taken to be included in the ninth section; the tenth section is addressed to the States only. This section prohibits the States from doing some things which the United States are expressly prohibited from doing, as well as from doing some things the United States are expressly authorized to do, and from doing some things neither expressly granted nor expressly denied to the United States. Congress and the States equally are expressly prohibited from passing any bill of attainder, or ex post facto law, or granting any title of nobility. The States are forbidden, while the President and Senate are expressly authorized, to make treaties. The States are forbidden, but Congress is expressly authorized, to coin money. The States are prohibited from emitting bills of credit; but Congress, which is neither expressly authorized nor expressly forbidden to do so, has, as we have already seen, been held to have the power of emitting bills of credit, and of making every provision for their circulation as currency, short of giving them the quality of legal tender for private debts—even by those who have denied its authority to give them this quality.
“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 in such form, and to impress upon them such qualities as currency for the purchase of merchandise, and the payment of debts, as accords 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. * * * The 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. See Craig v. Missouri, 4 Pet. 35, 453; Briscoe v. Bank of Kentucky, 11 Pet. 257, 313, 334, 336; Legal Tender Cases, 12 Wall. 557, 558, 622. The exercise of this power not being prohibited to Congress by the constitution, it is included in the power expressly granted to borrow money on the credit of the United States.
“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 exercise, that the property or the contracts of individuals may be incidentally affected.” * * * “So, under the power to coin money and to regulate its value, Congress may (as it did with regard to gold by the act of June 28, 1834, ch. 95, and with regard to silver by act of Feb. 28, 1878, ch. 20), issue coins of the same denomination as those already current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious metals, and thereby enable debtors to discharge their debts by the payment of coins of less than the real value. A contract to pay a certain sum in money without any stipulation as to the kind of money in which it shall be paid, may always be satisfied by payment of that sum in any currency which is lawful money at the place and time at which payment is to be made. 1 Hale P. C. 192, 194; Bac. Abr. Tender, B. 2; Pothier, Contract of Sale, No. 416; Pardessus, Droit Commercial, No. 204, 205; Searight v. Calbraith, 4 Dall. 324. As observed by Mr. Justice Strong in delivering the opinion of the court in the Legal Tender Cases, ‘every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power.’
“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 defense 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.’
“Such being our conclusion in matter of law, the question whether at any particular time, in war or in peace, the exigency is such, by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin, to furnish the currency needed for the uses of the government and of the people, that it is, as matter of fact, wise and expedient to resort to this measure is a political question, to be determined by Congress when the question of exigency arises, and not a judicial question, to be afterwards passed upon by the courts.” Opinion of court by J. Gray, in Juillard v. Greenman, 110 U. S. 421.
“It must be evident, however, upon reflection, that if there were any power in the government of the United States to impart the quality of legal tender to its promissory notes, it was for Congress to determine when the necessity for its exercise existed; that war merely increased the urgency for money; it did not add to the powers of the government nor change their nature; that if the power exists it might be equally exercised when a loan was made to meet ordinary expenses in time of peace, as when vast sums were needed to support an army or navy in time of war. The wants of the government could never be the measure of its powers. But in the excitement and apprehensions of the war these considerations were unheeded; the measure was passed as one of overruling necessity in a perilous crisis of the country. Now, it is no longer advocated as one of necessity, but as one that may be adopted at any time. Never before was it contended by any jurist or commentator on the constitution that the government, in full receipt of ample income, with a treasury overflowing, with more money on hand than it knows what to do with, could issue paper money as a legal tender. What was in 1862 called ‘the medicine of the constitution’ [by Sumner], has now become its daily bread. So it always happens that whenever a wrong principle of conduct, political or personal, is adopted on the plea of necessity, it will afterwards be followed on a plea of convenience.
“The advocates of the measure have not been consistent in the designation of the power upon which they have supported its validity, some placing it on the power to borrow money, some on the coining power; and some have claimed it as an incident to the general powers of the government. In the present case it is placed by the court upon the power to borrow money, and the alleged sovereignty of the United States over the currency. It is assumed that this power, when exercised by the government, is something different from what it is when exercised by corporations or individuals, and that the government has, by the legal tender provision, the power to enforce loans of money because the sovereign governments of European countries have claimed and exercised such power.
* * * “As to the terms to borrow money, where, I would ask, does the court find any authority for giving to them a different interpretation in the constitution from what they receive, when used in other instruments, as in the charters of municipal bodies or of private corporations, or in the contracts of individuals? They are not ambiguous; they have a well-settled meaning in other instruments. If the courts may change that in the constitution, so it may the meaning of all other clauses; and the powers which the government may exercise will be found declared, not by plain words in the organic law, but by words of a new significance resting in the minds of the judges. Until some authority beyond the alleged claim and practice of the sovereign governments of Europe be produced, I must believe that the terms have the same meaning in all instruments wherever they are used; that they mean a power only to contract for a loan of money, upon considerations to be agreed upon between the parties. The conditions of the loan, or whether any particular security shall be given to the lenders, are matters of arrangement between the parties, they do not concern any one else. They do not imply that the borrower can give to his promise to refund the money, any security to the lender outside of the property or rights which he possesses. The transaction is completed when the lender parts with his money, and the borrower gives his promise to pay at the time and in the manner and with the securities agreed upon. Whatever stipulations may be made to add to the value of the promises or to secure its fulfillment, must necessarily be limited to the property rights and privileges which the borrower possesses, whether he can add to his promises any element which will induce others to receive them beyond the security which he gives for their payment, depends upon his promise to control such element. If he has a right to put a limitation upon the use of other persons’ property, or to enforce an exaction of some benefit from them, he may give such privilege to the lender; but if he has no right thus to interfere with the property or possessions of others, of course he can give none. It will hardly be pretended that the government of the United States has any power to enter into any engagement that, as security for its notes, the lender shall have special privileges with respect to the visible property of others, shall be able to occupy a portion of their lands or their houses, and thus interfere with the possession and use of their property. If the government cannot do that, how can it step in and say, as a condition of loaning money, that the lender shall have a right to interfere with contracts between private parties? A large proportion of the property of the world exists in contracts and the government has no more right to deprive one of their value by legislation operating directly upon them than it has a right to deprive one of the value of any visible and taxable property.
“No one, I think, will pretend that individuals or corporations possess the power to impart to their evidences of indebtedness any quality by which the holder will be able to affect the contracts of other parties, strangers to the loan; nor would any one pretend that Congress possesses the power to impart any one quality to the notes of the United States, except from the clause authorizing it to make laws necessary and proper to the execution of its powers. That clause, however, does not enlarge the expressly designated powers; it merely states what Congress could have done without its insertion in the constitution. Without it Congress could have adopted any appropriate means to borrow; but that can only be appropriate for that purpose which has some relation of fitness to the end, which has respect to the terms essential to the contract, or to the securities which the borrower may furnish for the repayment of the loan. The quality of legal tender does not touch the terms of the contract; that is complete without it; nor does it stand as a security for the loan, for a security is a thing pledged over which the borrower has some control, or in which he holds some interest.
“The argument presented by the advocates of legal tender is, in substance this: The object of borrowing is to raise funds, the addition of the quality of legal tender to the notes of the government will induce parties to take them, and funds will thereby be more readily loaned. But the same thing may be said of the addition of any other quality which would give to the holder of the notes some advantage over the property of others, as, for instance, that the notes should serve as a pass on the public conveyances of the country, or as a ticket to places of amusement, or should exempt his property from State and municipal taxation or entitle him to the free use of the telegraph lines, or to a percentage from the revenues of private corporations. The same consequence, a ready acceptance of the notes, would follow; and yet no one would pretend that the addition of privileges of this kind with respect to the property of others, over which the borrower has no control, would be in any sense an appropriate measure to the execution of the power to borrow.
“* * * The power vested in Congress to coin money does not in my judgment fortify the position of the court as its opinion affirms. So far from deducing from that power any authority to impress the notes of the government with the quality of legal tender, its existence seems to me inconsistent with a power to make anything but coin a legal tender. The meaning of the terms ‘to coin money’ is not at all doubtful. It is to mould metallic substance into forms convenient for circulation and to stamp them with the impress of government authority indicating their value with reference to the unit of value established by law. Coins are pieces of metal of definite weight and value, stamped such by the authority of the government.
“* * * The clause to coin money must be read in connection with the prohibition upon the States to make anything but gold and silver coin a tender in payment of debts. The two taken together clearly show that the coins to be fabricated under the authority of the general government, and as such to be a legal tender for debts, are to be composed principally, if not entirely, of the metals of gold and silver. Coins of such metals are necessarily a legal tender to the amount of their respective values without any legislative enactment, and the statutes of the United States providing that they shall be such tender is only declaratory of their effect when offered in payment. When the constitution says, therefore, that Congress shall have the power to coin money, interpreting that clause with the prohibition upon the States, it says it shall have the ‘power to make coins of the precious metals a legal tender, for that alone which is money can be a legal tender. If this be the true import of the language, nothing else can be made a legal tender. We all know that the value of the notes of the government in the market, and in the commercial world generally, depends upon their convertibility on demand into coin; and as confidence in such convertibility increases or diminishes, so does the exchangeable value of the notes vary. So far from becoming themselves standard of value by reason of the legislative declaration to that effect, their own value is measured by the facility with which they can be exchanged into that which alone is regarded as money by the commercial world. They are promises of money, but they are not money in the sense of the constitution. * * * Now, to coin money is, as I have said, to make coins out of metallic substances, and the only money the value of which Congress can regulate is coined money, either of our mints or of foreign countries. It should seem, therefore, that to borrow money is to obtain a loan of coined money, that is, money composed of precious metals, representing value in the purchase of property and payment of debts.’ ” Dissenting opinion of J. Field in Juillard v. Greenman, supra.
See post, § 215.
110 U. S. 449.
Dissenting opinion of Justice Field in Juillard v. Greenman, 110 U. S. 465.