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fore, in 1854? No. Has the gentleman's ability to pay decreased ? Is his check not as good as before? Yes; every body will say that it is as good as gold. But still I cannot buy as much cotton with it as I could in 1824, and yet, the gentle. man's wealth has increased, and his check is worth as much as before. But cotton and gold coin have risen in value. The value of everything depends upon the demand and supply— gold has risen in value—Why? because gold is demanded to pay duties with. If the Government, as it has a right to do, should demand that all duties should be paid in tobacco, an instance which John C. Calhoun cited, and said that the Government, no doubt, had a right to require all duties to be paid in kind; and if so, then it would be the bounden duty of Congress to so regulate it, that it would be uniform throughout the country—suppose that all duties had to be paid in tobacco, should we not have to pay much higher for cigars than we do now 7 Would not tobacco rise in value to a fearful extent : Gold would become cheaper, and tobacco would rise higher in price. But gold now is demanded for duties. Has not that the effect to make gold higher? What do we want gold for 2 We do not eat it. It doth not clothe us. We want it to pay duties with, and to settle the few balances against us abroad. We have coined money since the beginning of the Government until 1860, to the extent of something like $800,000,000, a little less than that amount, and in 1860, as I stated in my argument below, according to the report of the director of the mint, we had only about $275,000,000 in the country. What has become of it? Did we want it? No. We do not keep money as a luxury. If any body should pay $10,000 in gold to your Honors, would you keep it? No; you would get rid of it as fast as you could. Nobody wants money to keep it. It is not made to keep, only to be exchanged for something else. It is a circulating medium. When we say the respondent is worth his $500,000 or $800,000, do we mean that he has so nuch gold coin in his vaults and coffers ? No; we mean that he has so much property in bonds and stocks, and houses and vessels, or whatever it may be, something that is of value, and the value is only estimated by this unit of money, the dollar. If the check of the respondent drawn against his credit, would be of value, is not the check of the Government of still greater value, since it is drawn against sixteen thousand millions of dollars worth of property 2 and is not each one of us bound to redeem that check of the Government 2 If we do not, then we should be poor indeed, poor in honor as well as in honesty. But to hasten on. The subject is so broad, that I could speak for hours upon it. I will, however, presently give way to my learned opponent. I wish to call your Honors' attention to a few of the passages in the opinions of the Judges. His Honor Judge Peckham seems to think it unnecessary that any express or implied power be delegated by the Federal Constitution to Congress to make legal tender laws; he says:
“As soon as money is coined, it is a legal tender, and that the law merely declared a legal consequence, when it provides that the coins and money shall be a legal tender.”
Although every statute passed in regard to money, is careful to say that it shall be a legal tender, the learned Judge says it is a mere legal inference—that it was not necessary to so provide by statute. In answer to this statement of Judge Peckham, I have only to say, that it seems to be his legal opinion, in regard to the half dollars struck since 1853, that it was not necessary for Congress to say that those half dollars, and all coins less than a dollar in value, should be a legal tender only for all sums less than five dollars, and no more. According to Judge Peckham's opinion, that was entirely unnecessary, for as soon as money is coined he says, it is a legal tender. It would follow then, that all such coins are a legal tender for a thousand dollars, or for any other amount, although that money had been debased; for the learned Judge says, that they were a legal tender as soon as they were coined. Then certainly they may strike any coins, of any amount of alloy. They may make coins of so little value that they would be worth but little, and the mere striking of them would make them at once, ipso facto, a legal tender according to his argument.
But Judge Ingraham, on the other hand, says, it is the States alone that have the right to make a legal tender, because the tenth section says that the States shall make nothing but gold and silver a legal tender. He grants that it is true that from the beginning of the Government to this very day the General Government has exercised that power, and that no law has been passed in this State making anything a legal tender. Hence it follows that we have no legal tender law at all. That is the natural inference from the learned Judge’s argument. And it follows further, that it must depend upon the special agreement in each case what shall constitute payment of a debt. The learned Judge admits, on the other hand, that the General Government has the power to emit paper money, and he admits such money to be lawful money of the United States. But he then says that Congress has no power to make the lawful money of the United States or anything a legal tender, and that the States alone can make a legal tender, but that they are restricted to gold and silver coin. I must yet allude to some assertions in the opinion of his Honor Judge Peckham, when speaking of the “sweeping proposition ” of his learned colleague of the Seventh District, who maintains that the Government of the United States has as full powers to provide for the general welfare and the common defence as any other government, and that this government pos. sesses for this purpose all the original inherent power of the people to protect themselves, and to provide for their self-preservation and general welfare, and that the safety of the people is the supreme law. His Honor Judge Peckham asserts that such sweeping propositions adopted in practice would constitute a despotism of the most absolute character; that the discretion of Congress alone would be made the measure of their au. thority; that Congress under this plea might pass a law introducing primogeniture and polygamy. The learned Judge then says (fol. 130), the argument for it would be, “We are at war, the nation wants men, the law of primogeniture would send the younger sons here, as in England, to the army for a livelihood, therefore enact it. A like reason, the supply of men would authorize polygamy in the States by an act of Congress.” These are measures, according to the learned Judge, which might be claimed to be necessary and proper for, and conducive to, the end, the general welfare and safety of the people. The
illustrations as means to a certain end, are most unfortunately chosen, having the very opposite tendencies which are claimed for them. We have, or have had, an institution in our country which has had the same effect as that claimed for primogeniture and this is the institution of slavery. We know that the baronial sons in the slaveholding portion of the country, think it beneath their dignity to pursue any other occupation than a learned profession or the profession of arms. Those who did not follow the former went into the army in times of peace, where they were educated at the expense of the General Government, and enjoyed the emoluments of their offices afterwards. But as soon as war broke out, they not only left the army, but broke their oaths of allegiance besides. The men that primogeniture sends into the army in England are more a nuisance, and so many impediments in the army there, than an assistance. Either measure, then, would certainly not be a means conducive to the end. As regards polygamy, being a means of supplying men for the war, and being conducive to the end, I beg to state, with all deference to the learned Judge, that a glance into any book on political economy will show that polygamy decreases population, diminishes it instead of increasing it. These measures, then, instead of being conducive to the end, having directly the opposite tendency, could not be claimed for the authority of Congress. If, then, seven months of time for search and deliberation could not supply better illustrations than these, to show how the power contended for in Congress might be abused, it is to be presumed that none better could be found. There is an express power given to Congress by the Constitution, which has been passed over entirely, or at least been treated slightingly by the learned Judges, namely, the power to regulate commerce. My learned opponent below thought that it was not worth the while to refer to it. His Honor Judge Peckham does not think it sufficiently plausible to require any remarks, and this the rather, as Judge Smith says nothing about it. Now, I have elaborated that point in my printed argument below. It is my deliberate opinion that if there be any power in the Constitution from which may be inferred anything like the power of passing legal tender laws, it is the power to regulate commerce. The learned Judges in their opinions, in particular his Honor Judge Peckham, gives battle against some other clause and to his colleagues in the Seventh District, but they do not take much notice of this clause or my argument on that point. I would beg your Honors to look particularly into this clause which gives the power to regulate commerce; for it is, in my humble opinion, a very important clause in relation to the subject in question, as, I trust, will be found some day or other. Regulating commerce is the prescribing of the rules by which it is to be governed. Commerce is principally the exchange of commodities. Exchange of commodities is then the subject over which Congress has the sovereign power of legislation. It has then, of course, necessarily the power to prescribe the rules by which the exchange of commodities is effected and governed. The medium by which exchanges are effected is the most es. sential element of the subject, over which Congress has sovereign power, and this medium is money. Hence Congress has the power to make money, whatever it be, paper money or metallic coin, the lawful medium of exchange. The respondent continually says, “My bond give me my bond l My bond entitles me to have gold, and I want gold /* He does not say that he wants lawful money. But it was not gold, but lawful money that we contracted to pay, and the question is, whether we tendered lawful money or not. According to Judge Ingraham's opinion, as I stated before, it is lawful money that we tendered. But this learned Judge says, at the same time, that Congress cannot make it a legal tender, because it is only for the States to enact what shall be a legal tender under the restriction of the Constitution. The States have not established any legal tender, and hence, as I stated before, if the learned Judge be right, then it neces. sarily follows that it depends upon the private agreement of the parties in each and every contract, what shall be deemed a legal tender or discharge of the contract. And so then we say in this instance, that we have bound ourselves to pay lawful money of the United States, and the re. spondent has bound himself to receive such in discharge of the