dissenting from the majority of the court, delivered THE FOLLOWING OPINION;
Congress, by an act approved February 25th, 1862, authorized the issual of treasury notes of the United States, and enacted that they should be a legal tender in the payment of all private and certain public debts. The sole question in this case is as to the constitutionality of said act.
Has the United States Constitution declared what shall be a legal tender? seems to be naturally the first question to solve; for if so, no act of Congress could'alter it, and it would not be an open question for judicial investigation and determination.
Previous to the formation of the national Constitution, the colonies, and then the States, in the exercise of sovereign power, had frequently, each for itself, within its own jurisdiction and for its own citizens, declared what should be a legal tender, not always restricting this to either metallic or paper money, but sometimes declaring tobacco and other commodities a legal tender.
By section 4, article 9, of the Articles of Confederation, it was provided “ that the United States in Congress assembled shall also have the sole exclusive right and power of regulating the alloy and value'oí coin struck by their own authority or by that of the respective States.”
In the formation of a national, sovereign, supreme government, it was deemed proper that the States should surrender all their sovereign power over this vast and important subject, save alone the right to declare gold and silver coin a legal tender which might be made, and the value regulated by Congress; or, if foreign coin, its value so regulated. Hence by paragraph 1, section 10, article 1, United States Constitution, it is provided—
*50“That no State shall coin money, or make anything but gold and silver coin a tender in the payment of debts.” And by clause 5, section 8, same article, Congress is given tbe power “to coin money, regulate the value thereof, and of foreign coin.”
But nowhere does the Constitution, declare what shall be a legal tender; on the contrary, the language of the Constitution, the history of the convention, the legislative history of the government under the Constitution, all conspire to the inevitable conclusion that it was not intended to fix the legal tender in the Constitution, but to leave it among the numerous subjects of legislation.
“No State shall make anything but gold and silver coin a tender in the payment of debts,” leaves the unquestionable right and power in the States to make such coins a legal tender, and how can they so make them but by enactment? If the Constitution has provided that such coin shall be a legal tender, why leave the power still with the States to enact what the Constitution had already ordained? This would be a folly not justly imputable to a body of such wise and patriotic men as framed tbe Constitution.
Piad the Constitution declared what should be a legal tender, this would have necessarily withdrawn it from the subjects of legislation. The power to coin money and regulate its value is not restricted to gold and silver, even if, as contended by some, it only authorizes tbe coinage of metals.
Congress has already coined copper and nickel, and should it deem the coinage of brass or zinc, or other metals, politic, it is not perceived by what clause of the Constitution the general and unlimited power to coin money is to be restricted so as- not to authorize this; and if all these coins of cheap and base metal become lawful money, and a legal tender by virtue of constitutional provision, Congress lias placed it in tbe pqwer of perverse debtors most effectually to destroy their creditors’ debt by paying large amounts of these almost valueless coins, notwithstanding Congress has .declared that thpse should not be a legal tender.
*51But to escape the unfortunate consequences of this logical corollary, it is asserted fhat the clause prohibiting the States from making anything but gold and silver coin a legal tender, restricts the grant -to Congress “ to coin money,” and limits this general power, given in general terms, to the specific power to coin gold and silver. It is believed that, in all the history of our jurisprudence, no rule of construction can be found which applies a prohibition on State legislation as -a restriction on an express power granted in general terms to Congress.
Such a rule of construction is deemed new, illegal, illogical, and totally unsupported by judicial authority.
Neither can the logic of facts and figures, and the import of general but plain terms, be met by the most beautiful similitudes, elegant amplitudes, dazzling drapery of sophistry, nor rhetorical sentences.
Had the convention intended that Congress should coin gold and silver alone, it would have said so; as it did say the States should make nothing but gold and silver coin a legal tender. To coin money and regulate its value is a very large and general power. To make gold and silver coin alone a legal tender is a very restricted and specific power. It is utterly impossible that the convention could have used these terms as synonymous. They are not so, nor did the convention so use them.
Nor did the convention intend to perpetrate the folly and absurdity of making every coin which convenience and policy might dictate that Congress should authorize,' a legal tender; but having wisely invested Congress with the unlimited power to coin money, intended, also, to leave with them the right to declare what should and what should not be a legal tender; subject alone to the qualification that the States might enact that the gold and silver coins authorized, and value regulated by Congress, should be a legal tender.
August 6th, 1787, the committee of detail presented the Constitution a? it had been previously agreed upon in convention. The thirteenth article provided that “ no State,. without the consent of the Legislature of the United States, should *52make anything- but specie a tender in the payment of debts.” If the convention had understood that nothing but gold and silver were to be a legal tender, surely they would not have proposed to leave with the States the power to make something else such by the consent of Congress; besides, this is a clear indication that the convention understood that the subject of legal tender was to be controlled by Congress.
This view is strongly fortified by the discussion on clause 2, section 8, article 1, which, as originally'reported, gave to Congress the power “ to borrow money and emit bills on the credit of the United States.”
Governeur Morris moved to strike out the words “ and emit bills on the credit of the United Stales,” remarking- that it would be unnecessary if the United States had credit; useless and unjust if they had not.
Mr. Madison inquired — “Will it not be sufficient to prohibit the making them a tender?”
This, said he, will remove the temptation to emit them with unjust views. ’ And promissory notes, in that shape, may, in some emergencies, be best.
Mr. Morris replied, that striking out the words will leave room still for notes of a responsible minister, which will do all the good without the mischief.
Mr. Gorham was for striking out without inserting any prohibition. Said he, the power, as far as it will be safe or necessary, is involved in that of borrowing money.
Mr. Mercer was a friend to paper money, and was conse- ■ quently oppos'ed to a prohibition altogether. He said: “It would stamp suspicion on the government to deny it a discretion on this point.”
The clause was stricken out, but no prohibition inserted.
(See Madison Papers, 3d vol.,page 1343, and subsequent pages.)
It is remarkable that in this discussion Mr. Madison stood alone for prohibiting Congress from making these treasury notes, or bills of credit, a legal tender. All conceded that the power to issue such was included in that of borrowing money, and neither Mr. Madison nor any other single, one suggested that the Constitution had or would fix gold and *53silver as the legal tender, nor that to make such bills of credit a legal tender would conflict with any other clause of the Constitution.
And although the 13th article, as reported, was altered by striking out the words “ without the consent of the Legislature of the United States,” and the words “gold and silver coin,” were inserted in the stead of “ specie,” leaving the Constitution in its present language, that “ no State shall make anything but gold and silver coin a tender in the payment of debts,” yet this in nowise indicates that it was intended to restrict the powers of Congress, but rather the contrary; nor can this language be rationally construed as restrictive of any of the express grants or necessarily implied powers, from such grants of the Constitution.
Having conferred upon Congress the power to coin money, and regulate its value, and of foreign coin, it was deemed entirely safe to leave with the several States so much of their original sovereign power, on this subject, as to declare such coin a legal tender; but it was regarded as essential they should surrender all other power over this entire subject; this and nothing more, was intended by this language.
The convention well knew that this subject of legal tender had been a fruitful source of discordant legislation by the several States. In the making a supreme, sovereign, perpetual, national government, what could have been more appro • priate and necessary than to give it supreme control over the national currency, by which uniformity of kind and value might be produced among the several States? And although the power to declare gold and silver coin a legal tender was still left with the States, and they could so enact in the absence-and perhaps in defiance of any act of Congress, yet this power must be exercised in subordination to the power of Congress to coin the money, and regulate its value, and of foreign coin.
In pursuance of this seeming understanding and intent of the convention, and meaning of the Constitution, Congress, from its earliest existence, h?is claimed the right to legislate on this subject.
*54By an act of April 2, 1792, establishing “ the mint for striking- and coining gold and silver coins,” Congress, after prescribing the weight, quality, and value of the coins to be struck, declared “ that all the coins which shall be issued from said mint shall be a lawful tender in all payments whatsoever.”
By an act of February 9, 1793, Congress provided that after the first of the following July, that “ the gold and silver coins of England and Portugal, France, and Spain, should pass current as money within the United States, and be a legal tender for the payment of all debts.” This act repealed the act of August 4, 1790, which, among other things, prescribed that certain foreign coins therein enumerated should be received for duties at prescribed rates; but did not make them a legal tender for any other purpose.
Congress had, from time to time, enacted other laws changing the value of certain foreign coins, and making them a legal tender, sometimes for limited and specified purposes, then, again, for all purposes; 'now by weight, then by tale. Such were the several acts of April 10, 1806, and March 3, 1823, making them receivable for public lands, and the acts of June 25, 1834, and March 3, 1834, declaring the legal value of certain silver coins, and that they should pass as money within the United States by tale for the payment of all debts.
By an act of June 28,1834, it was directed that foreign gold coins should pass current as money within the United States, and be received in all payments — weight according to the fineness and rates therein specified.
By an act of January 28, 1837, it was provided that the standard for both gold and silver coins should thereafter be of one thousand parts by weight, nine hundred should be of pure metal, and one hundred of alloy, and that the alloy of silver coins should be of copper, and the alloy of gold coins should be of copper and silver; but that not over one half of such alloy should be silver, and the weight and value of each were prescribed and declared to be a legal tender according to their nominal value; and that the gold and silver coin previously issued should continue to be a ‘legal tender at their nominal value as though of the coinage of said act.
*55By an act of February 27th, 1853, the weight of the silver half dollar was reduced from 206i to 192 grains, and the lesser silver coins proportionately, and these were made legal tender only in payment of debts for all sums’ not exceeding five dollars.
Thus it is seen that Congress has claimed and exercised .unlimited power over the legal tender, declaring what coins shall be received in payment of debts, and withholding the legal tender quality from others, though coined, and the value regulated by its own authority, sometimes impressing them with the legal tender quality for specified purposes and to limited amounts; at others, declaring them a tender for all purposes and amounts.
This assertion of power by Congress, and the seeming aquiescence, without challenge, by all the departments of the Government, the profession, and people, from the earliest his-dory of the Constitution down to this enactment of February 25th, 1862, is a strong proof of its existence; and this rule of construction has been so often recognized by the supreme court of the United States and the several States, as hardly .to need a recital of authority; still, see Martin vs. Hunter, 1 Wheaton, 421; Cohens vs. Virginia, 6 Wheaton, 421; Briscoe vs. Bank of Kentucky, 11 Peters, 257; Moores vs. City of Reading, 21 Penn., 188; Norris vs. Clymer, 2 Penn., 277; People vs. Green, 2 Wend., 274; People vs. Constant, 11 Wend., 511.
Another rule of construction lias been followed ever since the leading and exhaustive opinion of the supreme court .of .the United States in McCullough vs. Maryland (4 Wheaton, 316), by Chief Justice Marshall. Said the court.: “ Let the end be legitimate — let it be within the scope of the Constitution, and all means which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” * * * * *
•“ When the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of necessity, would be to pass the line which circumscribes the judicial department, . and to tread on legislative grounds.”
*56If this power to enact paper money to- be -a legal tender is; not prohibited, but is an appropriate mean of executing, any of the powers granted by the Constitution, it is hot a’reserved power to the States or the people thereof, and does not come within the prohibitions of the tenth amendment to the Constitution, that “the powers not delegated to the United States b,y the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But it is urged that under the Articles of Confederation Congress did not presume to enact that paper money, or the bills of credit authorized to be issued by said articles, should be a- legal tender, and this is true; but it is also true whilst they did not, because they could not, enact these to be a legal tender, tliey did recommend to the States to enact such bills to be a legal ténder, which the States, at the instance of Congress, did do, and this, too, notwithstanding to Congress was given the express, sole, and exclusive power of regulating the value of the coin struck by its own authority and that of the respective States. Hence no force is perceived in such argument; nor is the expression of a fugitive opinion by way of incidental argument on a pending bill, in no way involving the question of legal tender, by even Mr. Webster, deemed entitled to much consideration.
The Constitution has not, then, declared what shall be a legal tender — not even that gold and silver coin shall so be— nor has it conferred, in? direct terms, the power on Congress to-so declare. It has, however, left it as a subject of legislation; and this power to declare anything a legal tender, whenever and wherever found, will be ascertained among the incidental powers, but still as much sovereign as if expressly granted. Is. there any inhibition upon the power of Congress to declare paper money a legal tender anywhere to be found in the-Constitution, seems to be the next natural and logical question ?'
The States are prohibited from coining monéy, making anything but gold and silver coin a legal tender, and enacting; any law impairing the obligation of contracts; but no such prohibitions are imposed upon Congress; and it is a most sig*57nificant fact, that, whilst several other prohibitions are imposed upon the States, Congress is only prohibited from three things, to-wit: passing bills of attainder, ex post facto laws, and granting titles of nobility; and, as these inhibitions as to Congress are found in the next preceding section to those impbsed upon the States, together with the historical' facts mentioned, render it impossible to conceive that this most important subject of legal tender could have escaped the' attention of the convention.
Had any inhibition been intended, but left out by causality, it would have been found among the amendments to the Constitution, most of which were adopted at the suggestion of the several States made at the time of their ratification, and when the utmost vigilance and jealousy had been excited by the earnest opposition to its adoption, made by the States’ rights party, and some of which amendments ■ have been adopted since Congress has asserted its right over the subject by legislating thereon.
The Constitution was silent as to what should constitute a legal tender; the States might not declare even gold and silver coin to be such; it was a subject of vast importance; a common and general government was being made, which was intended to be national and supreme over the American people and their States, invested also with sovereignty and perpetuity, and to it was intended to be given the necessary powers to protect this sovereignty, supremacy, and perpetuity, and to enable it to accomplish the great object of its creation, in conducting their foreign relations and. controlling their national affairs.
Among the powers conferred to accomplish these great objects, were the regulations of commerce among the States, to coin money and regulate its value, and of foreign coin, to borrow money, to raise and support an army, provide and maintain a navy, and to call out the militia to repel invasion and suppress insurrection. To inhibit Congress from declaring the legal tender, or enacting that anything but gold and silver should be such, might seriously impair the efficiency of these great powers intended to be conferred without limit, and *58produce serious and calamitous embarrassment in times of great national peril.
Tbe national debt was then large, and must be provided for; so scrupulous were our fathers on this subject, that they provided by clause 1, article 6, of the Constitution, that “ all debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the confederation.”
Had the Constitution fixed gold and silver as the legal tender, or had inhibited Congress from making anything else such, the principal and interest of the national debt would have to be discharged in such coins, which was then literally impossible, as the entire gold and silver circulation of the' American people was little more than adequate to one year’s interest on the national debt.
The total amount of specie received by the United States treasury for the years 1778 and 1779, whilst engaged in the revolutionary struggle, and when much needed, and the authorities exerting every energy to get it, amounted to only $151,666.
After the adoption of the national Constitution, we learn from the reports of Mr. Hamilton, the first Secretary of the Treasury, that the national debt amounted to $94,000,000, bearing an annual interest of more than $5,000,000, when high authority has fixed the entire gold and silver circulation of the people at -this time at not exceeding this latter sum.
The scarcity of the precious metals at this period may be somewhat appreciated from the official returns of the operation of the mint established by the act of 1792. From 1793 to 1800, inclusive, a period of eight years, the entire coinage of the government was, of gold, $1,014,290; silver, $1,440,455; total, $2,454,745, or an annual average of something over three hundred thousand dollars. History has well attested that the great financial embarrassments of the United States government, under the Articles of Confederation of the several States, and the people at large, were among the prom*59inent causes which, led to the formation of the national Constitution.
It is almost past comprehension that a body of such wise and patriotic men as the American people have been taught to regard the convention, and which have been unanimously accorded them by posterity, could have added to those embarrassments by the adoption of such a provision in the Constitution as was then literally impossible for the government or. people, or both combined, to comply with. The total gold and silver of the country, being inadequate to the payment of the annual interest on the public debt, would have left the people without a constitutional currency to discharge their private obligations. Such a state of affairs must have resulted extremely disastrous to both the government and people, and is a pregnant fact conducive to the belief that the convention did not intend to fix the legal tender in the Constitution, nor to inhibit Congress from the largest jurisdiction over the subject. The situation of the government, the people, and the currency, rendered it impossible for the convention, with any degree of certainty or safety, to fix what should be a constitutional currency alone; but stern, unrelenting necessity, demanded that they should leave it a subject of legislation, trusting to the patriotism and wisdom of the people, and their Congress, and the then unseen developments of the future, to carry them safely through those difficult embarrassments.
The unseen but almost magic increase of the precious metals and wealth of the people, the progress in the powers of the nation, and the many perils by which the government has been environed, the most imminent of which it has just safely emwrged from, as the flattering indications assure us, all attest the great wisdom of the Constitution in leaving this subject of legal tender unrestricted with the law-enacting department of the government.
As the Constitution has not ordained what shall be a legal tender, nor has it prohibited Congress from so ordaining, we come to the question whether this power has been conferred upon Congress as a necessary and proper means of executing *60other powers expressly granted? Among the express powers conferred upon Congress by section 8, article 1, United States Constitution, are:
To pay the debts and provide for the common defense and general welfare of the United States.
To regulate commerce among the several States and with the Indian tribes.
To coin money, regulate the value thereof, and of foreign coin.
To declare war.
To raise and support an army.
To provide and maintain a navy.
To provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and quell invasion.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution, in the Government of the United States or in any department or officer thereof.
As was said by Chief Justice Denio, of the appellate court of New York, in his dissenting opinion adverse to the constitutionality of said act of Congress of February 25th, 1802, in the case of Meyer vs. Roosevelt, September term, 1863 (13 Smith’s N. Y. R“ It is not incumbent upon those who argue for the validity of the legal-tender clause to select any one express power. They may group together any number of these grants of legislative authority, and if the right to enact that provision is fairly deducible from any or all of them, their position is established.”
If the power to declare what may be a legal tender does exist, though belonging to that class known as implied powers, it is a sovereign power, and Congress has as much right to enact laws for carrying it into execution as though granted in direct terms.
If this be a proper and necessary mean of executing any one or more of the express powers, it is not only an implied power, incidental to such express power, but, by virtue of clause 18, section 8, article 1, of the United States Constitution, Congress “ may make all laws which shall be necessary *61and proper for carrying it into execution” — or, in other words, may make all necessary and proper laws to execute■ — - all the express and implied powers found in the Constitution.
For an elaborate discussion of these sovereign powers, see Norris vs. Doniphon (4 Met. Ky. R., 386, and Judge Williams’s separate opinion, 403). I also quote from the very able opinion of the appellate court of New York, by Judge Daviess, in the case of Meyer vs. Roosevelt, before recited, sustaining the legal-tender clause: .
“ Every form of government unavoidably includes a grant of some discretionary powers.. It would be wholly imbecile without them. It is impossible to foresee all the exigencies which may arise in the progress of events, connected with the rights, duties, and operations of the government. If they could be foreseen, it would be impossible, ah initio, to provide for them. The means must be subject to perpetual modification and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not revolutionized in every critical period, and remodeled in every generation, there must be left to those who administer the government a large mass of discretionary powers capable of greater or actual expansion, according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed somewhere; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of the elective franchise, and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies.”
In Anderson vs. Duncan (6 Wheaton, page 204), the court said: “ The idea is utopian that government can exist with*62out leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest upon responsibility, and stated appeals- to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.”
The power to declare the legal tender is not substantive, but incidental to several substantive powers; to coin money and regulate its value is substantive, and to declare such coin a legal tender incidental thereto; to borrow money is substantive, and to use such means as may be necessary to execute it are incidental; to declare war is substantive, to -make' a blockade and other things may be. incidental thereto; to raise and support an army, provide and maintain a navy, are substantive, to arm, equip, and transport the same, are incidental.
But for the use of gold and silver as a circulating medium by the civilized nations, these would have but comparatively little intrinsic value; they are not intrinsically money; they may be better adapted to that use than other commodities, but who can tell in the progress of science and chemical, geological, and mineralogical developments, that some other metal as well or better adapted to such use may not be discovered?”
The Earl of Liverpool, in his Treatise on the Coins of the Realm (p. 8, London, 1805), said: “Money is a standard measure by which the value of all things are regulated and ascertained, and is itself, at the same time, thd value or equivalent for which goods are delivered.” Eckfield and Dubois, in their Manual of Coins and Bullion, and supplement thereto, down to 1851 (chapter 24, No. 642, L. Congressional Library, page 6, which is an official report to Congress on our coins), says: “ This is a standard definition given by all the authorities from Aristotle down to the present time.”
“ The commodity which has thus, by the uniform but silent, unconcerted operation of human motives and action, become *63the common medium of exchange and general measure of value, constitutes the money of the community, and in this character it acquires an additional value.
“Various articles in different countries and in different stages of society, have, in this way, acquired the property of money. *' * * * Tobacco was also used as a universal equivalent in Maryland and Virginia.” (Tucker on Money and Banking, pp. 4 and 5.)
In Virginia and this State are to be found statutes giving so many pounds of tobacco as costs by the judgment of court, which were, after many years had elapsed, changed by enacting so that each pound of tobacco should be regarded as of given value, and the costs should be collected in money at such rates. Gold and silver being coined, and the value regulated, and declared to be a legal tender by authority of Congress, became, indeed, “precious metals.”
By impressing this legal tender quality on the government’s own promises to pay, they too become of “precious value.” In what consists the difference of constitutional power in the impressing with a new and valuable, but not intrinsic quality, metals or paper? The greater value of neither is intrinsic, but derived from the omnipotent fiat of Congress in ordaining them to be a legal tender, and making them the legal standard by which the value of all commodities, the discharge of all private liabilities, and the commerce of the country shall be regulated, and by infusing into these inanimate and almost valueless things the vitality of a circulating medium, vesting them with a magic and almost incalculable value.
If the making these treasury notes a legal tender does invest them with this new, inestimable, and magic value, who can say it is not a necessary and proper mean of borrowing money? The power of the government to issue its securities for what it may need, as compensation for either services or commodities, has been so often exercised, so universally acquiesced in, and for so long a period, and sustained in every instance in which the question in any of its phases has come before the courts, as no longer tO'be considered an open question for further controversy; and having this unquestioned *64right, it may issi<« ,. ust such securities as Congress may direct, either as interest-¡.oaring coupon bonds, designed for permanent investments, or stocks, or treasury notes, designed for circulation as a medium. The latter class obtained so early as Mr. Madison’s administration, and has been often issued since, with the concurrence of our ablest statesmen and jurists, even embracing those of the most rigid construction and extremest States’ rights schools. Even Mr. Calhoun, in the United States Senate, January 16th, 1840, said: “Paper has, to a certain extent, a decided advantage over gold and silver. It is preferable in large and distant transactions, and cannot, in a country like ours, be dispensed with in the fiscal transactions of the government, without much unnecessary expense and inconvenience, the truth of .which would soon be manifest if the government should consent to dispense with the use of treasury drafts. But this is not the only form in which it may be necessary or convenient for it to use its own credit. * * * I am decidedly opposed to government loans. I believe them, to be, in reality, little better than a fraud on the community,, if made in bank notes, and highly injurious if made in large amounts in specie. * * It may be laid down as a maxim, that without banks and bank notes, large government loans are impracticable, and without some substitute, such loans, in the event of a war, will be unavoidable. The only substitute will be found to be in the direct use by the government of Us own credit. * * I also regard the use by the government of its own credit in the form of treasury notes, or some other better form, as indispensable to the permanent success of the policy of this bill.” (Sub-treasury bill.)
On a bill authorizing the issual of treasury notes, he, on September 19, 1837, said: “ Believing that there might be a sound and safe paper currency founded on the credit of the government exclusively, I was desirous that those who were responsible, and have the power, should have availed themselves of the opportunity of the temporary deficit in the treasury.”
In a rebellion of such gigantic proportions and vast magnitude, requiring an army of a million of soldiers and sailors to *65suppress it, involving the government in a daily outlay of say two millions of dollars, or of an annual expenditure of say seven hundred and thirty millions of dollars, could this vast army have been “raised and supported,” and this immense navy “ provided and maintained ” on the circulating medium of the loyal States, including the specie and paper currency, and that which belonged to individuals and corporations? The precise amount cannot be ascertained;' but we have sufficiently accurate data to direct with almost absolute certainty to a correct determination. By reference. to United States Bankers’ Magazine (vol. 12, p. 341-2), it will be ascertained that the specie in the banks of the loyal States, at the breaking out of the war, amounted to $76,314,712, and the circulation of said banks to $139,577,439; total, $215,892,151; thus the .entire capacity of all the banks of the loyal States was something less than adequate to one hundred and twenty days’ expenditure. But it would have been wholly impracticable, yea impossible, for the banks to have collected from their customers this circulating medium, and any attempt to do so would but have intensified the financial panic of the first few months of the war, and produced general bankruptcy upon the people and disaster to the government.
What the amount of specie in individual hands was cannot be ascertained with any satisfactory degree of certainty, nor is it important to do so, for whether large or small, it was soon hoarded and secreted, and of but little, more use to the government than if it had not existed..
The dangers attendant upon war, even with foreign nations, have always caused the hoarding and secreting of the precious metals. No government, however energetic and despotic, can prevent this; private cupidity, stimulated by alarm, has ever been, and will ever prove, too active, sagacious, and efficient for the strongest and most vigilant government.
This cupidity, sagacity, and energy are greatly, enhanced by the perils of a civil commotion endangering the existence of the government, unsettling private rights, making uncertain private property, and jeopardizing personal liberty; whilst *66in a government mild and liberal, and beneficent in its provisions and action, scarcely any restraint is found over this controlling passion of the human heart to provide against these perils and calamities. The inevitable consequence of this rebellion, as in all past times, was to create alarm and distrust; each man became a vigilant guard for his own interest and that of his family; the creditor desired to realize his debt, and that, too, in specie, so far as at all practicable; the holders of bank notes desired them redeemed in gold. In this active state of alarm and vigilant caring for private interest, the banks were soon driven to a suspension of specie payments, the gold and silver coins sought the places of safety, secrecy, and darkness. No longer did these perform the functions of a “ circulating medium,” and he that sought for these could most truthfully return “ non esb inventus.'1'1
A financial and commercial panic seized upon the country. The treasury of the government was empty, its necessities numerous and most pressing; it wanted to borrow large sums, but where were the lenders? The banks might be depended on to supply the first needs, but these would soon become exhausted, because so greatly inadequate.
If the government would preserve its own national existence it must “ raise -and support ” immense armies, “ provide and maintain ” vast navies. To do this required more money annually than the entire circulation of the banks, and the gold and silver coins of the banks and the people of the loyal States.
With a strong, not to say unfriendly, disposition on the part of the governments and people of the two leading maritime, manufacturing, commercial, and wealthy nations of Europe, to exaggerate the dangers and weakness of the government, and magnify the strength and certainty of success of the rebellion, hopes of a foreign loan could not be reasonably entertained.
Besides, the government must encounter all the moral influence and financial power of the disloyal at home, who, not content with abstracting the gold and silver coins from the use of the government, but were constantly, with an energetic *67vigilance, decrying the government credit and securities, using their financial talents to create and spread distrust and alarm, and their financial and money power to sink the government credit to the lowest grade.
In this transition state from peace to war, revolution in the habits of ou> people and the commerce of the country, surrounded by disloyalty, distrust, and alarm, the government must provide for these new exigencies, unforeseen, consequently unprovided for, but still imperious in their necessities, else its armies could not be “ raised and supported,” its navies could not be “ provided and maintained,” and, without these, it could not perpetuate its national existence, but must vanish from the world as a thing of the past, and with its downfall must go the last brightest evidence of man’s capability for self-government. If, then, to issue its own “ promises to pay,” in convenient form and amounts for circulation, and to impress these with a new and magic quality and value, and thereby provide for this overruling necessity, and at once place the government in possession of the necessary means to “ raise and support ” its army and “ provide and maintain ” its navy, how shall it be said this was not a necessary and proper law for executing these powers?
And if it was a proper and necessary mean of executing any of the enumerated powers, it was not only incidental to such powers, but expressly authorized by clause 18, section 8, article 1, of the Constitution.
But it is said that had Congress increased the taxes, and pledged the public revenue and lands, or had it made treasury notes interest-bearing, it would have much more sustained the credit of the government and these notes, than to make them a legal tender.
Now, it so happened, that at the very session that enacted this legal tender, immense taxes were laid, the revenue pledged, two years’ five per cent, semi-annual coupon legal tender treasury notes were also authorized and issued, and, notwithstanding the legal tender quality was imparted, with all the other props suggested, the credit of these treasury notes, of all classes, continued to sink, until they would not *68command in market forty per cent, of their par value in gold and silver, and is but another evidence of the impracticability and unreliability and very insignificant value of speculative theories.
It is again said the five-twenty bonds were more valuable than these treasury notes. The history of the gambling markets of New York would show they varied from a few cents below, to a few cents above their par valúe, in these treasury notes, perhaps a larger part of the time above par; but when it is remembered that these bonds were to be paid at maturity in gold, and the interest was to be paid semiannually in gold, this fact affords neither argument nor inference.
If this power does exist, its existence is contemporaneous with the Constitution, although the occasion for its exercise may not have occurred until long since.
There.are powers which were conferred by, and exist contemporaneous with, the Constitution, which were not intended nor expected to be exercised in times of peace.
Then whether the power to make these treasury notes a legal tender be alone included in the power to coin money and regulate its value, and of foreign coins, or to borrow money, or to regulate commerce among the States, or to raise and support an army, and to provide and maintain a navy, or to provide for calling forth the militia to suppress insurrection and enforce the laws of the Union, or whether it is a proper and necessary mean of executing any one or more of these powers, it is equally authorized by the Constitution, and obligatory as law.
These express, sovereign, and unlimited powers were conferred upon the national Government for the transcendent purpose of perpetuating its existence, and thereby securing the liberty and nationality of the American people to the latest generation; and then, lest there should be some infirmity in the language conferring the powers, clause 18, section 8, article 1, gave to Congress in the broadest language the most plenary power “ to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and *69all other powers vested by this Constitution in the government of the United States or any department or officer thereof.”
As it was intended by this clause to perfect all the vested powers in their fullest significance and amplitude, Congress must, to a great extent, be left to judge what laws should be necessary and proper for the execution of the vested powers; and in a. government deriving its powers from the people, being made to promote their general welfare, and to secure the blessings of liberty to them and their posterity, its laws designed to be thte embodiment of public sentiment, subject to be changed and modified by this potent agency, as-is also the Constitution itself, where could discretion be more safely or properly lodged than in the representatives of the people and their States ? ■ And before courts will unsettle the decrees of this, a co-ordinate department with their own, vested with the high powers of enactment presumed to represent and respond to that public sentiment which was designed to be uncontrolled- and omnipotent within the sphere and allowances of the Constitution, they must be satisfied fully and clearly that the enactment is without the authority of the Constitution, and every rational presumption in favor of its validity is to be indulged.
Having shown, as is trusted, with reasonable certainty, that the Constitution does not declare what shall be a legal tender, nor has it restricted the legal tender to any kind of metals, coins, or money, and the power to declare these treasury notes a legal tender is not a substantive but derivative power, and was a necessary and proper execution of several vested powers, it remains to vindicate the justice and legality of making them such in the discharge of pre-existing debts, and that neither law, Constitution, nor good conscience demand that any more than the nominal amount should be required in the discharge of such debts.
This power to declare what shall be a legal tender existed from the adoption of the Constitution, to be exercised in such manner, and under such modifications, as circumstances might require, and the exigencies of the government might demand, and the general welfare of the people might indicate; and its *70exercise being of mutual hazard to the creditor and debtor, and whether the one or the other class might be the more seriously affected, would be equally just, as its exercise must be presumed to be for the “ greatest good to the greatest number,” and not to foster or inflict private interest, hence individual interest should yield to the public welfare and necessity.
It has been already remarked, that whilst the States were prohibited from enacting laws impairing the obligation of contracts, none was imposed on Congress, but, on the contrary, Congress is authorized to “ establish uniform laws on the subject of bankruptcies throughout the United States.” (Clause 4, sec. 8, art. 1, Constitution.) It is true that this language does not in terms apply to pre-existing debts, yet the courts have unanimously upheld the constitutionality of bankrupt laws, by which the debtors in pre-existing liabilities have .been released on their own voluntary application, and such laws have been adjudicated to be constitutional by that august and supreme tribunal, which the people and States have selected as the final arbiter in all questions of “ law and equity arising .under this Constitution and the laws of the United States,” &c., to-wit: the supreme court of the United States.
These bankrupt laws have been sustained when applying to pre-existing debts, on this principle: that this was a sovereign power vested by the Constitution in Congress, and liable to be exercised by them at any time; hence that each contract was made with the legal implication that the obligation should exist until discharged by the obligor, unless Congress should, in the meantime, provide for the obligor’s release by a bankrupt law. Precisely so as to legal tender — this power to declare the legal tender is sovereign, though belonging to the class of implied powers: when Congress enacted that gold and silver coins should be a legal tender, every contract to pay dollars was a contract to pay that many dollars of the .gold and silver coins so declared to be a legal tender, with the further legal implication that if Congress, in the meantime, should enact that something else should be a legal tender, *71that the debtor might discharge, and the creditor would receive, in this new legal tender money or currency, the exact amount of dollars named in the obligation; and this implied condition is as much a part of the legal contract as its express conditions.
Congress has In various ways affected the obligation of contracts, sometimes in favor of the creditor, then in favor of the debtor. Such has been the effect of making gold and silver coins a legal tender when, previously, Continental and other paper money and commodities had been a legal tender. War has always seriously affected contracts and often annihilated the rights of the creditor. Embargoes and blockades have had a similar effect, and the bankrupt laws annihilated the obligatory' force of the contract; yet all these have been upheld by the highest judicial authority.
The gold coins by the act 1834 had been so debased that ninety-four eagles of the previous coinage contained as much gold as one hundred under this act; yet it took as many of the old eagles' to discharge a debt as of the new eagles, although the old had a greater market value than the new; yet these were of equal value in the eyes of the law, because both were a legal tender, so declared by Congress, for their nominal value or amount, and not for their marketable value.
This change of the legal tender is no new principle either in English or American legislation. In Poug vs. De Lindsay et al. (Dyer, 82 A.), in debt on bond for payment of £24 sterling, plea of tender, that at the time of payment of said sum of money, certain money was current in England in the place of sterlings called pollards, held, that if, at the time appointed for payment, a base money is current in lieu of sterling, tender at the time and place of that base money is good, and the creditor can recover no other.
Where the obligation was to pay on a given day five quarters of wheat, which were worth fifty pounds on the day of the contract, but only five pounds on the day of payment, the judgment was for the five, quarters of wheat or Jive pounds, is recited from the year books II H. VII, 36.
*72Queen Elizabeth, by proclamation of May 24th, in the 43d year of her reign, declared and established as lawful and current money of Ireland a certain mixed money, which she had caused to be coined in the tower of London, to pay the royal army, and carry on the war in the rebellion of Tyrone.
Brett, a merchant of Drogheda, bought goods of Gilbert in London, and became bound to him for £100 — -previous to said proclamation.. Brett made a tender of the £100 in this mixed money — this was held a good tender. (Daviess R., 28. In Barrington vs. Potter, Dyer, 816, fol. 67). After the fall and debasement of money in 5 Edw. VI., debt was brought on -lease for two years rent in arrears,, which fell due at Mich. Term, 2 Edw. VI. The lease was dated November 21; 31 year Henry VIII. At the time the rent fell due the shillings were current at 12 pence, which were decried to 6 pence at the time of bringing the action. The defendant pleaded tender on days of payment in pedis monetce anglicce vocat shillings, and averred that each shilling was payable at 12 pence when tendered, the plaintiff received'the money after demurring. “ If foreign coin be made current at a higher rate than its intrinsic value by proclamation, a tender in such money is good in Great Britain.” (Bacon’s Ab. Tender, b. 2, vol. 7, p. 325.) The same principles have been upheld by the American courts. In Faw vs. Martellar (2 Cranch, 20). In the year 1779, when Virginia currency consisted of paper money, Faw, obligated himself to pay as yearly rent twenty-six pounds Virginia currency; but paper currency, which was lawful money at that date, had been withdrawn by a law of 1781, the defendant insisted he could only be compelled to pay in 1782 what this Virginia currency was worth at the time of the contract; that he had not contracted to pay specie, which was the legal currency at the time of the judgment; but the court by Chief Justice Marshall held: “ This can only mean money current at the time the rents shall become payable. * * * The position that the value of the money at the time when the ■consideration for which it was to be paid was received is the standard by which the contract is to be measured, is not a correct one.”
*73The case of Bowmans vs. Bowmans’ exr. (1 Wash. Virg. R., 26), was a suit on bond for £53 payable in Virginia currency; the court held that there was no paper circulation held as current money in April, 1790; that the tender must be •money current at the time of the tender, else it is not a legal tender; and that the currency named in the bond having ceased to be current money, would not do to tender; that the legal effect of the bond was to pay £53 in such currency as was current at the time of payment.
In United States vs. Robertson (5 Peters, 644), the supreme court of the United States, by Chief Justice Marshall, said: “An obligation to payment generally is discharged by a payment in legal currency.”
It will be perceived that the debtors derived the benefit from the alteration of the currency in the recited English cases, whilst the creditors derived the benefit in the American cases.
In the debasement of the gold coins by Congress, the debtors derived a great benefit; but these benefits to private parties were not the moving motive of either England or America, are merely incidental to a great public policy, adopted'to meet the exigencies of the times, protect the public, and perpetuate the government.
Private interest, including gains and losses, must be secondary and subsidiary to the great public policy so essential to the' protection and preservation of the government. An overruling necessity has required of Congress another change in the lawful current money of the country; the private interest of the debtor class is benefited by this change, and the creditor class may be injured; but why should the creditor, any more than the debtor, be permitted to obtrude his private interest to thwart an essential public policy?
These powers were given for wise and beneficent purposes. It was not to be presumed that Congress would lightly trifle with the great interest of the community, work a revolution in the currency and commerce of the country, without the most urgent necessity.
*74The necessity for these changes cannot be foreseen and provided for, but must be .acted on when presented. The hazards of such changes are mutual; no man can, therefore, rightfully complain of the injustice of his government when these changes are so cautiously made, and for such weighty reasons. The love of gain may not be gratified, and private cupidity maybe disappointed, but the patriotic will find ample compensation for his incidental losses in the welcome reflection that his government has been rescued from ruin, its free institutions perpetuated, his private, fortune secured from wreck and ruin, and his individual liberty and the liberty of his posterity guaranteed by the preservation of the Government, and that this legal-tender act has contributed much to this preservation.
Now that many hundreds of millions of dollars of this currency has found its way into circulation, the commerce of the country has been adapted to this new medium. Millions upon millions of both public and private liabilities, entered into upon the faith that it was a legal tender; hundreds of banks organized upon this basis, with many millions of circulation; the soldiers and sailors been paid with it for their perilous and meritorious services, neither justice nor sound policy requires that this new state of affairs should be' unsettled, another commercial and financial revolution produced, private fortunes wrecked, private rights disturbed, and the great interest of society wantonly tampered with.
Before courts should be expected to pronounce judgments thus, unsettling acts of Congress, the great business of communities, and producing such momentous and sad results, a stern, unrelenting necessity to preserve the Constitution should be clearly demonstrated.
There is but one legal standard by which to measure the payment of debts, and that is to require the debtor to pay the number of legal dollars which may be called for by the contract and adjudged against him.
The law does not admit of any difference in the value of dollars of its legal currency, however the market value of the one or the other currency may differ or vary. The gold dol*75lar declared to be a legal tender will discharge precisely a dollar, nothing more; the treasury note dollar declared to be a legal tender will discharge precisely a dollar, nothing less.
This rule of the law is plain, easy, and simple, and harmonious in all its workings. Depart from it, and confusion and embarrassment meet us everywhere.
The discharge of debts is rendered complicated and uncertain. If a debtor cannot pay a thousand dollars of his indebtedness with a thousand dollars of any currency, made a legal tender by law, what amount of such currency will discharge it? Who is to ascertain the amount which will be required? And by what means is it to be ascertained? By what market or standard can it be ascertained? Is the court pronouncing the judgment to say it may be discharged by the payment of one amount of one kind of legal currency, and by a different amount of another kind of legal currency? What law authorizes any such judgment? If the court is not to do it, is the collecting officer to determine this? And, if so, is he to hear the conflicting evidence of witnesses and be governed by the conflicting values of different markets; or how is he to arrive at just and certain conclusions? And is he to judge at his peril, or is he to be wholly irresponsible? Is his judgment to be final, or subject to revision? And if subject to revision, by .what mode of operation and by what forum?
These questions are suggestive of the absurdity of departing from the harmonious, simple, and uniform rule of the Constitution and the laws, to regard dollars, declared by law to be a legal tender, of the same exact value, whether of coin or paper, regardless of the market value of either or both. With this rule the duties of courts and collecting officers are simple, first for the courts to ascertain how' many dollars are to be paid, and then for the collecting officer to ascertain whether the currency offered is of either kind made by law a legal tender.
Much light has been shed upon this subject by the able opinions of Judges Daviess, Balcom, Wright, Emmott, and Marvin, of the appellate court of New York, in the case of *76Meyer vs. Roosevelt, and other cases tried at the same time; and by the United States court of claims, opinion by Chief Justice Casey, in Latham vs. United States, March 6, 1865.
Respect for the legal learning and integrity of my two colleagues, Peters and Robertson, would have made it agreeable to concur with them, but for my own conscientious convictions that this act was but the exercise of constitutional •power by Congress. The disagreeable necessity of dissenting from their opinion is, however, to some extent, relieved, when I reflect that the constitutionality of this act was upheld by the experienced and able circuit judge who presides over the 13th district, in one case, and by that learned jurist, the venerable chancellor of the Louisville chancery court, in two other cases now before this court.