ARGUMENT

OF

HON. JOHN K. PORTER,

Of Counsel for Respondent,

MR. PORTER said:

May it please the Court,-The able and exhaustive argument of my learned associate, has left nothing with which I can occupy profitably the portion of time allotted for my part in the discussion, unless it be to submit some general suggestions, as to the powers of Congress under the Constitution, in the varying exigencies of peace and of civil and foreign war.

Precisely here is the point from which, in our reasonings, we begin to diverge from my learned friend MR. CURTIS, who, in his opening argument, has presented with so much perspicuity and learning, all that can be urged against the power of the Government to uphold itself against treason, and to defend against the violence of rebellion the People by whose authority the Union was ordained.

We submit that there is and can be no bolder constitutional heresy than the proposition, which, though not advanced in terms, pervades the entire argument of our adversaries, that the Constitution is a mere compact between the States, or, at most, a mere power of attorney from the people to the Federal Gov

ernment.

It is an Ordinance of Sovereignty, framed by the American people, through their representatives in 'national convention, and subsequently ratified in separate conventions by the people

of each of the original thirteen States. It has been ratified by the people of each of the younger States which have since presented themselves, from time to time, at the capitol, for enrollment as members of the Federal Union, and to seek protection and strength beneath the ægis of the Constitution.

In construing this ordinance, it is to be read in view of the unlimited power of those who framed it, and the magnitude of the objects which they proclaimed, as intended and secured by its adoption.

The preamble of the Constitution is the first utterance of the nation as an organized government. It is the proclamation of their will, their purpose, and their act, by the whole American People. In every exigency of national existence, it continues to announce to the Government, and to the world, the sovereign objects the people sought to attain, and the sovereign powers they assumed in the Constitution to confer.

In the light thus reflected upon it, by this unanimous and authentic utterance of the popular will, every clause of the ordinance is to be read. Each grant of power is to be expounded with a view to the great ends proclaimed in the preamble. The Constitution furnishes in its first words its own irrevocable rule of judgment.

"WE, the People of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Six objects are proclaimed:

1. Cementing the Union. 2. Establishing justice.

3. Ensuring domestic tranquility.

4. Providing for the common defense.

5. Promoting the general welfare.

6. Securing to ourselves and our posterity the blessings of liberty.

To secure each of these great ends, in times of peace, peace, of war, of insurrection, of invasion, of public repose, of public danger, the Constitution commits to Congress, as the representative of the popular will, the powers under consideration in this discussion, to be so exercised as to fulfil each and all of these high

trusts.

It empowers the representatives of the people, by the enactment of laws, subject to the check of the Presidential veto :

1. To lay and collect taxes.

2. To pay the public debts.

3. To provide for the common defense.

4. To regulate commerce.

5. To coin money.

6. To borrow money.

7. To regulate the value of money.

8. To punish counterfeiters-of public securities and current coin.

9. To declare war.

10. To support armies. 11. To maintain navies.

12. To suppress insurrections.

13. To repel invasions.

14. To enact all laws needful to the execution of these powers, and of all other powers, vested in the Government, or any of its officers or departments under this Constitution.

Your Honors will observe that in my abstract, I have marshaled these powers, not in the order of their enumeration in the Constitution, but in the order appropriate to the discussion of the questions now submitted for judgment.

Exigencies have arisen during the present war, which have made it necessary, in order to enable the Government to execute these powers, and to preserve its own existence, to employ more money than exists in gold and silver coin in the Western Hemisphere, and more than probably exists to-day on the face of the whole earth.

Ours is the wealthiest Government in Christendom. Its resources are boundless, but they are not in coin. The people it

is charged with the duty of defending, is rich, but not in coin. The country is at war with rebellious States in which paper money is the legal currency.

We have debts to pay-armies and navies to support-insurrection to suppress-invasion to repel-a country to defend.

Congress has adjudged, with the concurrence of the Presid ent, that an exigency has arisen, in which it is "necessary and proper," for the protection of the people and their Government, to make the public credit available for the public defense, and to make the notes of the United States, with a pledge of the public faith, a legal tender in payment of public and private debts; and laws have accordingly been enacted with that view, from time to time, as the necessities of the nation have demanded.

The enemies of the Government, at home and abroad, de. nounced these acts, as they have denounced every measure of the war. The People, of course, acquiesced. They appreciated the public necessity. If Congress had failed to fulfill its trust, it would have precipitated us into universal bankruptcy; and this, by an almost inevitable necessity, would have involved. the speedy dissolution of the Government.

The policy adopted by Congress, with the concurrence of the Secretary of the Treasury, has vindicated itself by its works. The public credit has been maintained. We have upheld the army and the navy, while they in turn have upheld the Government. We have narrowed the lines of rebellion and compressed the throat of treason. Under the measures adopted by Congress, and to-day arraigned before the judiciary which owes its being to the Constitution, the people of the loyal States, in their mere material interests, are more prosperous now in a time of public war, than any other people on earth in periods of profound peace.

But this acquiescence is not universal. The defendant in this particular case occupies a mere fiduciary relation, and has a record of loyalty which will honorably connect his name with the history of New York during this memorable war. But some half dozen gentlemen from a population of twenty millions, who seem to have personal and private interests which do not harmonize with "the general welfare" of the country, which it

is the constitutional duty of Congress to promote-and who would prefer their payments in gold, at the premium it bears in times of civil commotion, have almost simultaneously invoked the Courts, in this and in other States, to nullify these acts of Congress, and to fulfill their oaths of fidelity to the Constitution, to which my learned adversary so impressively referred, by adjudging it to be utterly impotent even for its own salva

tion.

There is no allegation, either by these non-contents or their counsel, that Congress is prohibited from declaring by law what shall be a legal tender in payment of private or of public debts.

They concede that the omission of such prohibition was not inadvertent; for the subject was present in the minds of the framers of the Constitution, and the tenth section of the same article which clothes Congress with the broad powers to which I have referred, expressly prohibits the States from making any thing but gold and silver coin a tender in payment of debts." (Constitution, Art. 1, Sec. 10.)

The omission was confessedly due to no hesitation, either as to the propriety or necessity, of limiting the broad powers conferred on Congress by the eighth section; for the ninth section of the same article contains a series of emphatic and express prohibitions.

Neither can it be claimed that the omission was due to inadvertence on the part of the people; for after full discussion of every clause of the Constitution in the conventions of the several States, amendatory articles were proposed, consisting mainly of limitations of the powers of Congress; but no State could be found even to propose a prohibition of the exercise of the power, inherent in all sovereignties, of determining by law what should be a tender in payment of private and public debts.

Nor was the omission due to the people's being unmindful that this was an inherent right of the law-making power in every government claiming to be supreme. They recognized the existence of the power, by prohibiting its exercise by the States-which were not intended to be supreme in matters of national concern. They recognized its necessity, by not extending the prohibition to the General Government, which, for na