Mr. Webster, in commenting upon this clause of the Constitution, observed:

"If money, if currency, silver or paper, be a thing essential to commerce, how can they regulate commerce without regulating the currency of the country. This is a full and complete grant, and must include anthority over everything which is part of commerce, or essential to commerce, and is not money essential to commerce?"

Congress may levy taxes and collect them by a uniform system of taxation. The reasons which have already been presented for a uniform currency, apply also to this power. The process of collecting taxes with facility, and the ease of obtaining their payment in a uniform currency, combine to prove that a law, making the government currency uniform, and of undoubted security and value, will greatly aid in the execution of this power. Our learned adversaries have a hard task to perform.

It will be incumbent on them to satisfy the Court that the facility for borrowing money does not depend upon the character or value of the security the borrower is able to furnish; that soldiers can just as easily be procured to fight for a note which will not pay their debts, as for a note which every citizen is compelled to receive at par; that it will not aid in regulating commerce, or collecting uniform taxes, to furnish a governmental currency of uniform value throughout the United States.

If we examine the entire law in question, we shall find that it relates to the payment of part of the public debt, and makes other provisions concerning such debt, and also relating to the revenues of the Government. What has already been submitted furnishes the answer to the objection, that the legal tender clause is not adapted as a means to any of the ends for which powers were conferred upon Congress.

It would scarcely be claimed by my learned adversary, that, if an individual were to send his agent into Wall street to borrow money, that it would not be a very useful and appropriate means, adapted to the desired end, to furnish him with unquestioned security. If he is expected to obtain the money on real estate security, the possession of evidence of title to real estate,

and if on personal security, good endorsed paper would be very convenient, useful, and well adapted to the end. The better the paper, the more fit and appropriate the means. So, in this case, the power to make the paper a legal tender is directly adapted to the end. It is an appropriate means. And wholly unlike the extreme case put by my learned adversary, of taking the property of an individual by law of Congress, which is the judgment and not the law, and therefore obnoxious to the well settled distinctions recognized by the Courts between a judg ment and a law, the real and true measure of adaptation is clearly expressed in the case of U. S. vs. Fisher (2 Cranch), already cited.

"Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution."

How aptly these words apply to a law making notes a legal tender for all debts? How eminently conducive is such a means to the borrowing of money, and to the exercise of the other powers herein mentioned, granted to Congress by the Constitution?

I leave this branch of the case, entertaining the most complete conviction that the more the subject is considered, the stronger will appear the grounds on which, the constitutional power to pass this legal tender law rests.

V. The attention of your Honors is now called to some few authorities bearing upon the precise question involved in this case. Special consideration is invited for the opinions of Justices JOHNSON, E. DARWIN SMITH, and J. C. SMITH, maintaining the constitutionality of the law in question, in the case of Hague vs. Powers.

The Supreme Court of Indiana has adjudged the same law to be constitutional, in the case of Reynolds vs. The Bank of Indiana (American Law Register, for September, 1862, page 669).

A Bank had offered legal tender notes in payment of its bills, and a suit was brought, involving the sufficiency of the tender, (similar to our own case,) and the Court held the tender good. Candor requires that I should add, however, that no

part of the opinion in this case is satisfactory to me, or adopted by me, except its conclusion; for the reason that the judgment is placed on a question of expediency, rather than on the higher ground of principle, on which alone it could safely repose.

In the case of Shoenberger agst. Watts (American Law Register for July, 1862, page 553), the District Court for the city and county of Philadelphia assumes the validity of this law. Judge HARE held, that where a bond and warrant of attorney were drawn in terms payable in gold and silver, and a judgment entered thereon, and a fi. fa. issued, by which the sheriff was required to levy the debt in gold and silver, the fi. fa. was irregular, as a final judgment was necessarily for lawful money, and payable in any money which the law has made legal tender. The learned Judge speaks of the importance of the currency to the political system, and alluding to the recent act of Congress, making treasury notes a legal tender, to the grant of the money-making power to the Government of the United States. He employs this language in reference to the universal power conferred upon the Central National Govern

ment.

"Hence the power of saying what shall be money, at what rate money shall be taken, and what it shall be worth, has, in all civilized countries, and almost from the outset of civilization, been deemed one of the badges and attributes of sovereignty, and assigned to the central and supreme authority of the State, as that which may indeed be perverted or abused, but which, yet abused or not, must be exercised uniformly, and according to some common rule, in order to be of utility at all."

The Supreme Court of the United States, at its recent term, decided in the case of The People, ex rel. The Bank of the Commonwealth v. The Commissioners of Taxes, that the securities of the United States were exempt from taxation under State authority. The opinions of the Court have not been examined to ascertain the ground on which the decision is placed. An act of Congress, passed in 1862, declares that such securities shall be so exempt, and the judgment of the Court of Appeals, in the case mentioned, which is reversed by the Supreme Court, proceeds on the ground that the securities of the United States, then in question, had not been declared to be exempt by

act of Congress. Judge DENIO plainly indicates an opinion in favor of the power of Congress to pass a law declaring the securities of the United States to be exempt. It is submitted, that as an incident of the borrowing money, the power may be sustained, and that, on the same grounds here presented, for upholding the power to make treasury notes a legal tender.

Judge DENIO says in that case (23d N. Y. R., p. 199):

"We give no opinion on the question whether Congress could enact a law by which the lenders of money to the Government should enjoy the advantage of exemption from State taxation, in respect to such loans. Events may occur, perhaps they have already occurred, when the preservation of the Constitution and the continuance of the Union may depend upon the ability of the Government to obtain a seasonable supply of funds, and we would not unnecessarily interpose a dictum which would appear to circumscribe any powers which it may possess."

Since this argument was prepared, the decision of the Supreme Court in that case has been published (25 Howard's Practice Reports, page 9) I do not find that the Court put the case upon the validity of any act of Congress. And yet a pas sage or two, in the opinion of Mr. Justice NELson, in determin ing the opinion of the Court, seems to me to be important as bearing upon some of the questions I have discussed, viz., one, the borrowing money power, and all the incidents connected with it, and the other, the supremacy of the General GovernHe says:

ment.

"The power to borrow money on the credit of the United States is admitted. It is one of the most important and even vital functions of the General Government, and its exercise a means of supplying the necessary resources to meet exigencies in time of peace or war."

And in respect to the General, and the State Governments, he says:

"Each is sovereign and independent in its sphere of action, and exempt from the interference or control of the other, either in the means employed, or functions exercised; and influenced

by a public and patriotic spirit on both sides, a conflict of authority need not occur or be feared."

In Thorndyke v. United States, (2 Mason, 1,) the validity of the act of Congress passed in 1814, declaring treasury notes. a legal tender in payment of all debts due to the Government, was recognized and the law enforced.. I am aware that Justice PECKHAM argues in Meyer v. Roosevelt, that there is a distinction in principle between such a case and a debt due to a citizen. With great respect to the learned Judge, the soundness of the distinction is neither conceded nor appreciated. The legislature of New York may release debts due to the State of New York. (Constitution of New York, Art. 7, sec. 14.)

The Congress of the United States, however, can neither release a debt due to the Government, nor authorize its payment in a currency which Justice PECKHAM maintains to be unconstitutional, unless it is included among the powers expressed or those fairly implied. I think it would be difficult to find in the Constitution of the United States, the words which embrace the power to make these notes a legal tender for a debt due to the Government, without finding in the same words power to make such currency a legal tender for private debts. Demands due to the Government are due to the nation in its aggregate capacity. If the whole is greater than a part, or the greater includes the less, it is respectfully insisted, that the power to make treasury notes a legal tender for debts due to the whole nation, fairly includes a power to make such notes available in payment of debts due to a citizen of the nation.

This case of Thorndyke v. United States, is also in point as an authority upon the right of Congress to issue treasury notes, even if not applicable upon the other branch of the case, the power to make them a legal tender.

In Liek v. Faulkner, the District Court of California held the law in question constitutional, and sustained a tender in treasury notes.

The Superior Court of Cincinnati, also, a highly respectable Court, has recently adjudged the law to be constitutional and valid.