of lands belonging to the United States but situated within the limits of a state, punishing those who conspire to intimidate such purchasers and drive them away from the land so purchased,' and prohibiting, under penalties, officers of the United States from requesting, giving to, or receiving from any other officer money or property, or other things of value, for political purposes.2

12. It has also been held that Congress may issue a paper currency and declare that that currency shall be a legal tender in payment of debts. Until in 1862 the financial needs of the government in carrying on a war for the suppression of the rebellion rendered it, in the opinion of Congress,, necessary that the treasury notes of the United States should be made a legal tender in the payment of debts, neither statesmen nor jurists had asserted that Congress had, under the Constitution, the power of making anything but gold or silver coin a legal tender. The acts of Congress of 25 February, 1862; 11 July, 1862, and 3 March, 1863, declared that the notes issued thereunder should be "lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports, etc." Under these acts it has been decided that neither taxes imposed by state authority, nor private obligations payable by their terms in gold or silver coin,” are

1 United States v. Waddell, 112 U. S. 76.

2 Ex parte Curtis, 106 U.S. 371; Stat. 15 Aug., 1876, c. 287, sec. 6. For further illustrations of the implied powers of legislation which Congress may exercise, see the judgments of Story, J., in Prigg v. Penna., 16 Pet. 619; of Strong, J., in The Legal Tender Cases, 12 Wall. 457, 535; of Gray, J., in Juilliard v. Greeman, 110 U. S. 421, 444, and of Miller, J., in Ex parte Yarbrough, 110 U. S. 658.

3 12 Stat. 345, 532, 709.

Lane County v. Oregon, 7 Wall. 71; Hagar v. Reclamation District, 111 U. S. 701.

5 Bronson v. Rhodes, 7 Wall. 229; Butler v. Horwitz, ibid. 258; Bronson v. Kimpton, 8 id. 444.

debts within the terms of the acts of Congress dischargeable by payment in legal tender notes. In Hepburn v. Griswold,' the court held that the Legal Tender Acts applied to debts contracted before as well as to debts contracted after the enactment of those statutes, and that, so far as they applied to debts contracted before their passage, the statutes were unconstitutional, but in the Legal Tender Cases 2 Hepburn v. Griswold was overruled, so far as regards the second branch of the proposition laid down in it, and the constitutionality of the Legal Tender Acts was sustained, the ground of decision being that the power to impress the notes of the government with the quality of legal tender, though not expressed in the Constitution, was "necessary and proper for carrying into execution" the express powers to "coin money," "to regulate the value thereof," "to pay the debts," "to borrow money," "to raise and support armies," and "to provide and maintain a navy;" that the Constitution does not expressly prohibit the issue of legal tender notes by the United States; that their issue is not inconsistent with the letter or the spirit of the Constitution, and that the end being constitutional and the means being appropriate, the degree of its appropriateness is subject to legislative, and not judicial, determination. The Legal Tender Cases are followed and supported by Dooley v. Smith, Bigler v. Waller, N. & W. R. R. v. Johnson,5 and Juilliard v. Greeman, in the last of which cases it was held, that the power to make treasury notes a legal tender exists in time of peace as well as in time of war, and that legal tender notes when redeemed by the Treasury and reissued under the Act of 31 May, 1878, retain their legal tender quality

1 8 Wall. 603.

2 12 Wall. 457.

3 18 Wall. 604.

4 14 id. 297.

5 15 id. 195.

6 110 U. S. 421.

If the question were not concluded by authority, and if it were open to examination on principle, it would be difficult of solution, and those who have studied it the most thoroughly would most hesitate to dogmatically state a conclusion either for or against the constitutionality of the Legal Tender Acts. The Constitution does not expressly authorize, nor prohibit, the enactment of such statutes by Congress; it does expressly forbid the states to coin money, emit bills of credit, or make anything but gold and silver coin a legal tender; it makes the government of the United States a sovereignty, whose powers are, it is true, enumerated, but which is none the less, within the limits of those powers, a sovereignty, to whose control are intrusted "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation," and which in the execution of its great powers is entitled to use the appropriate means; it forbids the states, but it does not forbid the United States, to impair the obligation of contracts; and it expressly empowers the United States "to coin money," and "to regulate the value thereof." It seems to me, as Mr. Justice Holmes has said,2 that the controversy really turns on the construction of the last clause quoted. The government's promissory note, payable on demand, is, if it be not a legal tender, nothing more than an evidence of indebtedness on the part of the government, and as such assignable by the original creditor to other persons, and its issue is as and its issue is as plainly authorized by he power to borrow money as is the issue of government bonds; but when the government undertakes to impress on that promissory note the quality of a legal tender in satisfaction of the antecedently contracted

1 Per Marshall, C. J., McCulloch v. Maryland, 4 Wheat. 407. 24 Am. Law Rev. 768: 1 Kent's Com. 254, Ed. 1873.

debts of those who are not parties to the transaction of borrowing between the government and its original creditor, the note is made to be something more than an evidence of indebtedness, and it then becomes "money," for it not only circulates in fact, but it performs those offices which "money" only can perform; that is, it not only serves as a medium of exchange and a measure of values, but it also is the efficient means of a compulsory legal discharge of a debt. Various things that are not "money" may perform one or more of these offices, but it is "money" alone which can discharge all of them. Now, if the government, when it borrows, or pays its debts, or makes its purchases, can give to its creditor that which has no intrinsic value, but which that creditor can compel his creditor to receive in satisfaction of an antecedent debt, it is somewhat difficult to see how or why the delivery of that thing of no intrinsic value as the equivalent for materials purchased by the government, or money loaned to the government, or as the legal discharge of a debt due by the government, will not greatly facilitate borrowing, purchases, and payments by the government. From this it would seem to follow that the issue of legal tender notes, however unwise in statesmanship, is a plainly adapted means to the end of raising and supporting armies, providing and maintaining a navy, borrowing money, and paying the debts of the United States. The use of that means is not prohibited expressly.

It is not prohibited impliedly, unless the implication of a prohibition can be deduced from the specific grant of power to "coin money." If that grant means that Congress may issue a metallic currency and make that a legal tender, certainly the force of the maxim, expressio unius est exclusio alterius, converts that limited. grant of power over the currency into an implied pro

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hibition of the impression of the legal tender quality on notes. If, on the other hand, the word "money,' in the constitutional sense of the term, means only, as Professor Thayer has argued,1 a medium of exchange which does not involve the idea of a legal tender, the power to coin money does not expressly authorize the issue of a metallic legal tender, nor does it impliedly forbid the issue of a paper legal tender. Of course, the same conclusion must be reached, if the word "coin" does not mean to stamp metal discs, but means only to issue a currency of any material. In support of that view, Mr. McMurtrie has said,2 that the Constitution was framed by men who were versed in the technical terms of English law, and that in English law the phrase "to coin money" meant to issue a currency of any material and to give to that currency all the qualities of a circulating medium. But it is settled that the Constitution is to be judicially construed as the act, not of the convention which framed it, but of the people who ratified it, and that in construing it, its words are to be read in their natural sense, departing from and varying by construction the natural meaning of the words only where different clauses of the instrument bear upon each other and would conflict, unless the words were construed otherwise than by their natural and common import. Applying to the Constitution these principles of construction, there is certainly some force in the view that the power to "coin money," whatever it may have been intended to accomplish, expressly authorizes the issue of metallic "money," and therefore impliedly forbids the issue of paper "money." In view of these

1 1 Harvard Law Rev. 83.

3

* Observations on Mr. George Bancroft's Plea for the Constitution, pp. 20 et seq.

3 Gibbons v. Ogden, 9 Wheat. 1.

Sturges v. Crowninshield, 4 Wheat. 122.