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 authority; 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 essential 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! 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 necessarily 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 respondent has bound himself to receive such in discharge of the

bond. We have tendered him lawful money of the United States, the treasury notes, (which Judge Ingraham says is lawful money) in accordance with our written stipulation.

But my learned opponents and the learned Judges say, that this debt was contracted before the act of Congress went into operation, and this law cannot have a retrospective effect.

Now, the debt having been contracted before the act went into operation, the question is, what rights did the respondent, the creditor, acquire by becoming such creditor? and does the law in question impair such rights? Certainly a debt does not give, ipso facto, a lien upon the property of the debtor. All the right that a creditor acquires is only the right to sue as soon as the debt has matured, and to use such measures to enforce his debt as the law provides.

His Honor Judge Ingraham, in support of his position, quotes a case, (Quackenbush v. Danks, 1 Denio 128-130) which has never been law in this State. Even when the case came up on Appeal, (in 1 Comstock, 129) the Judges were divided in opinion. But the case was absolutely overruled by this Court of Appeals, in the case of Morse vs. Goold. (1 Kern, (11 N. Y.) p. 281.)

His Honor Judge Denio delivered the overruling opinion, in which he says:

"The right which a creditor, by becoming such, acquires, is to have the use and benefit of the laws for the collection of debts, which may be in force when he shall have occasion to resort to them, to enforce his demand against his debtor. The method by which a contract may be impaired by legal action would be the alteration of some of its terms or provisions, so that, assuming the validity of the law, the parties would be relieved from something which they had contracted to do, or would be obliged to do something which the contract did not originally require.'

Now, I say, that the debtor in the present case engaged to pay lawful money, such as was lawful money at the time the debt was payable and paid. If the parties meant any other kind of money, they should have specified it. If the creditor should bring his action in debt, he would obtain judgment for so much lawful money of the United States, and no other money could be collected on execution than what is lawful at the time.

the execution is enforced. Is it possible that he could require more before the issuing of the execution than he could after?

But even suppose, that the law of Congress in question, is retrospective, and impairs the obligation of contracts, I maintain that Congress has the power to pass laws which may impair the obligation of contracts-not directly, but incidentally. By way of illustration and proof, I cite in my argument below, the act of 1841, establishing a bankrupt law, which was retroactive. Oh! says my learned opponent and the learned Judges, that is a bankrupt law, and the Constitution gives to Congress express power to pass bankrupt laws.

In answer to it, I ask, Does a bankrupt law of itself “ex vi ter, mini," or the clause authorizing Congress to pass one, give the power to impair the obligation of contracts and to make it retrospective? The answer is, No!-Bankrupt and Insolvent laws may also be passed by the individual States, provided that they affect only contracts entered into subsequently to the act, and that Congress has not exercised this power. Now, if the States cannot pass a bankrupt law discharging a contract which was in existence at the time it was passed, for the reason that the Constitution forbids the States from passing any law impairing the obligation of contracts, how, then, can the General Government pass any retrospective bankrupt law, if you say that the United States are likewise bound by the Constitution to pass no law imparing the obligation of contracts? Then Congress could only have such a power to pass bankrupt laws, as the States have. Congress then must have the general power to pass laws, which incidentally impair the obligations of contracts, or it could not pass a bankrupt law which has this effect. But that Congress has the power to pass such a retrospective bankrupt law has been decided by all the Federal Courts, and also by our own State Courts in case of Kunzler v. Kohans, which I cited below, where the Court says:

"I admit the value of the rule, that general words in a statute which may be satisfied by being allowed to operate on contracts made subsequent to its passage, should, in their application be limited to the latter. The rule, however, is not a limitation of legislative power. It is one of judicial con