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Mr. CURTIs said:
to “hear me for my cause.” What that cause is, and its importance, you already perceive. I am to speak in it on behalf of a public officer of the State, whose duty it is to vindicate its sovereign right of legislation in one of the most important aspects in which that right can be viewed. But great as is the responsibility devolving upon those who are to maintain the rights of the State in this controversy, I frankly say to your Honors that there is but one thing the influence of which I fear. It is the tendency, now so rife among us, to measure constitutional powers by the opinions of men respecting public necessities. Into that field I shall not at present enter.
I have been accustomed, through my whole professional life, to look to the text of the Constitution, to the known historical facts in which it had its origin, to the known purposes for which it was established, and to the settled course of judicial decisions under it, for the rules of its interpretation; and I cannot look for those rules in the conflicting judgments of men as to what the exigencies of finance at a particular time may or may not have required.
I am to speak, moreover, to a bench of Judges whose lives are passed in the investigation of legal truth ; who know that the law is a science in what concerns the public rights of governments, as it is in what concerns the private rights of in.
dividuals; and whose steadfast and instinctive pursuit of justice will not be likely to lead them aside into the paths of political expediency. Yet you will not feel, I am sure, that my anxiety is misplaced. Look for a moment, I beg your Honors, at the issue that is here really made up. If there be one attribute of sovereignty more clear, unquestionable, and now unquestioned, than another, it is the power to create banking and other corporations, and to prescribe the law of their existence. No one will now undertake to say that this power is not possessed by the people of New York in full sovereignty. Here is one of these corporations; creature of the State ; born of its sovereign legis. lative will; and having impressed upon it, as the law of its existence, at the time of its creation, that it shall redeem its paper circulation in gold and silver. It now comes into Court, holding an Act of Congress in its hand, and says to you—the judicial ministers of the State, bound by your high relation to the State and by your oaths of office to administer her laws, and to uphold her sovereignty to the full extent of its just limits— ?his corporation now says to you : “I, the creature, am absolved from my obligation to obey the law imposed upon me by my creator; that law is now a dead letter; henceforth I redeem my circulation in the irredeemable paper promises of the Federal Government.” But this is not all. The people of New York, for their own protection, and for the protection of others beyond their borders who might chance to hold these bills, prescribed to this corporation, as the law of its existence, that before it should exercise the faculty of issuing bills for circulation, it should deposit in the hands of the State certain public securities, to be administered by the State as a trust fund for the payment of these bills, dollar for dollar, fraction for fraction, to the last item of indebtment, according to the specie standard. The Corporation now comes into Court, and calls upon this bench to restrain the sale of these securities, notwithstanding the solemn command of the statute of the State that they shall be sold under the circumstances which now exist in this case. At the same time, no change whatever has taken place in the legislation of the State in this respect. The faith of the State still stands, as it must forever stand, pledged to the holders of these bills, to secure their payment by a definite and specific course of administration of the assets deposited as their security. To this, then, may it please your Honors, have we come at last, under the operation of the doctrine of “necessity,” as a guide to the exercise of constitutional powers. This exactly and rigorously is the issue. It is a direct collision between the legislative will of the State and the legislative will of the Federal Government. It is an issue which cannot be avoided; it has been made inevitable by those who would have it just as it is. It is to be maintained by our learned opponents on the other side, and to be decided upon the consciences of the members of this tribunal. I pray your Honors further to observe that this is not a collateral and indirect effect of a national policy, operating adversely to the policy of a State, so as to reduce the value of public or private securities. It is a question whether there exists on the part of Congress, under the Constitution of the United States, a paramount authority to affect the subject of tender, the payment of a contract—a paramount authority to affect the discharge and operation of a trust originating under the Constitution and laws of a State, and to be administered by the State as a trustee. That is the issue—whether there exists such paramount authority on the part of Congress as will enable them, notwithstanding anything in the Constitution and laws of a State, to prescribe what shall be payment and discharge of a contract; or to interfere with the operation of a trust, commencing and ending solely under the Constitution and laws of a State. And here, perhaps, it is my duty to anticipate an argument which I think is the only suggestion that can be resorted to, to show that the issue is not what I have stated it to be. It may, perhaps, be argued that, inasmuch as all that the State has required is that these corporations shall redeem their bills in “lawful money of the United States;” and that as treasury notes, so called, are now declared by Congress to be lawful money, the banks in the employment of this species of currency, in the redemption of their bills, are within the operation of the State law. Now, I have to say, at the outset, in reference to the construction of the State law, what I hope no one, on or off the bench, will take as in any degree offensive, that I apprehend that an honest judicial mind cannot say to the people of New York, looking at their history, and the history of their constitution and laws, that when they prescribed payment of these bills in “lawful money of the United States,” they meant anything on earth but gold or silver. Why, from the year 1787 to the year 1862, no human mind in this country ever dreamed of such a thing as lawful money of the United States being anything but the coin of the realm, with the stamp and impress of the Government upon it; or such foreign coin as might be in circulation here, whose value, according to the Constitution, had been regulated by Congress. During all that period, no man of any political party ever claimed, for any purpose, or under any circumstances, that Congress had power to make a paper money and give it the qualities of money in the payment and discharge of debts. Therefore, I say, that if we stood on the statute alone, and apart from any provision of the Constitution of the State, the phrase “lawful money of the United States” is capable of rational construction upon no other supposition than that it meant the coin of the United States. The people of New York, when they made that statute, meant no dishonesty; they meant that their banking system should work no dishonesty; they meant the actual straight-forward telling down upon the counter, dollar for dollar of the hard money of the realm. They meant to rest their banking system upon no other basis. Moreover I do most respectfully submit to your Honors, that it is absolutely out of the power of this Court to construe that statute otherwise; for the Constitution of the State requires not only that the Legisla. ture shall not sanction or permit a suspension of specie payments by any bank, but it also requires them, in so many terms, to take ample security from every bank that they authorize, for the redemption of their bills in specie. The law must be construed, therefore, in accordance with the Constitution of the State. The argument on the other side, then, must be that, notwith- . standing this provision in the Constitution and laws of the State, notwithstanding the trust with which the State has clothed
itself, to secure to the holders of these bills, in a regular and due course of administration, payment out of the securities thus pledged in the hands of the State, yet, that by some paramount authority of Congress, founded in some part of the Federal Constitution, that body is able to prescribe changes in respect to that trust, and to substitute in the place of that which the Legislature of the State has prescribed, and the people of the State in their sovereign capacity have prescribed—something other than gold and silver. I submit, then, that I have correctly stated the issue, and that it is not to be made to turn on any broad and fanciful meaning of the phrase, “lawful money of the United States.” How, then, shall this issue be met 7 I answer, by the principles of the Constitution, and by no expediencies or necessities whatsoever. It cannot be that our political system does not contain within itself the means of bringing this pretension of the Federal power to the test of a definite rule. That system was no accidental arrangement in reference to expediencies of a temporary or of a shifting character. It was a body of fundamental laws, carefully separating the objects of Federal from the objects of State power; and furnishing within itself, as a guide to the judicial mind in all future time, a test by which to ascertain the extent and measure of the au. thority conferred upon the General Government. That rule, as I shall by and by have occasion to submit to your Honors, requires a special relation between the means that are to be employed to execute any given power of Congress, and the end for which that power is to be exercised. The issue divides itself into two principal questions, which are substantially stated on the agreed case by the parties, but which I shall submit to the Court in a slightly different phrase. . ology, although it in no respect changes the substance.
First—Has Congress power to make the paper promises of the Federal Government a legal tender in payment of any debts not due to that Government :
Secondly.—If it has this power in respect to any debt not due to the Federal Government, can a bank of this State avail itself