represent that which has a fixed and universal value. To say that a paper promise shall be of the value of an ounce of gold, and to compel creditors to receive it as such from their debtors, is essentially an immoral, as it is an illogical, irrational, and unstatesmanlike enactment, by whatever government or country it has been heretofore, or may be hereafter undertaken.

My answer, therefore, to the argument, over which some honest people have puzzled themselves, is this:

First. That the coinage clause of the Constitution contemnplates money of the precious metals, in the form of coin, as a measure and standard of values.

Second. That the power "to regulate the value" of such money means only a power to ascertain and certify the quantity of pure gold or silver embraced in each coin, and to give to it the denomination required by the national system of notation, according to its relation to the unit adopted for that system.

Third. That this power necessarily excludes an arbitrary valuation of paper, as money.

I turn now rapidly to another view of the subject, which to my mind is equally conclusive. I deny that Congress has any express or any implied authority over contracts, or their obligations, except to discharge them by a uniform bankrupt law. It is entirely immaterial, as it seems to me, to say that Congress is not in terms of the Constitution prohibited, as the States are, from passing laws impairing the obligation of contracts. The question is on the existence of a positive power to prescribe what shall be a legal tender in discharge of a debt, or to prescribe what shall discharge the obligation of a contract by way of payment.

Now, the acts of Congress which have declared that the regulated coin shall be a legal tender in payment of debts, mean nothing more than this, that the coins issued under those acts. are certified to be of a regulated value, and may be employed under the laws of the States as "gold and silver coin," the subject of legal tender being left to the States, with the restriction that nothing but "gold and silver coin" shall be made by the States a legal tender in payment of debts.

The power which has been exercised in these various acts of Congress, which declare that the coin shall be a legal tender in payment of debts, does not depend on any substantive power over the obligation of a contract, or any relation to the obligation of a contract. It depends simply on the power to make a standard of value, and to issue and to stamp that coin which is to be the sole means of tender under the laws of the States, if the States choose to have a tender law.

The Constitution gives Congress no power whatsoever to affect the obligation of a contract, short of a discharge in bankruptcy. It gives simply a power to fix the value of the metallic money which, under the laws of the States, may be made a tender, if the State sees fit to affect the obligation by a tender. What are the provisions of the Constitution on this subject? Congress is the agent of the people of the whole country to make and value a metallic currency: its agency ends there. The States had originally, and still have, exclusive authority over contracts of every kind which are not made with the United States, subject only to the limitations that they shall not impair the obligation of a contract, and that they shall not undertake to make paper money a legal tender in discharge of it. Now, how does any power on the subject of a tender, or any control over the obligation of a contract, result to Congress from these provisions? The subject of tender, or of the liquidation of a debt is not removed by these provisions from the sphere of State legislation, or from the State jurisdiction; and, therefore, I submit that, from the provisions of the Constitution, and from the entire scheme of its arrangement on all these subjects, we can deduce the power of making merchandise a legal tender just as easily and directly, and with the same logic, that we can deduce the power to make the paper promises of the Government a legal tender. If not merchandise, why paper money? If Congress can make one thing a legal tender, why not another?

It is manifest, I submit, from the relations of the two sovereignties, that Congress has no control whatever over a contract, either to prescribe whether a tender shall discharge it, or in any way to regulate the subject of payment between man and man. It has only the power which springs from the authority to make a uniform bankrupt law, and that is not payment, but a release from the obligation.

It will be conceded, I take it, that all property is held in this country by tenure from the States, unless it be of that description which is granted by the United States, such as patents, copyrights, and grants of land titles, where the title has been in the United States; and even in respect to land, after the title has passed out of the United States, the entire regulation of the title, how it shall descend, what shall be the nature of the property, its whole conditions, and the whole subject of its tenure, are entirely and exclusively within the control of the States themselves. Does it not follow, then, that all contracts relating to property to be performed within a State, that all obligations between the citizens of a State, that all obligations between the citizens of a State and the State itself, whether those obligations spring from the banking laws, or from any other portion of the State legislation, must be--both in reference to the nature of the obligation and the rule of law that is to govern it, and the remedy that is to be prescribed to it, and that which shall be received as accord and satisfaction of the obligation,-must be matters exclusively within the State control, subject only to the prohibitions that the obligation is not to be impaired, and that-gold and silver shall alone be made a legal tender.

I submit that Congress cannot, under any circumstances, prescribe what shall be payment of my debt to my neighbor. All it can do is to provide that metallic currency which it is its trust and duty to provide, by means of which, under the law of the State where I am to perform that obligation, I am to discharge it.

Still less can Congress stretch its authority over the great public trusts which a State may have assumed for the protec tion of any of its citizens in the administration of any system of its laws, and by undertaking to intervene and to interfere in that which shall constitute a discharge of those obligations and the execution of those trusts, prostrate the State sovereignties in the dust..

It must be remembered, and it behooves all men in authority every where carefully to remember, that after the original Constitution was made and laid before the people and adopted, with all its powers, whatsoever they are, there came from the PEOPLE, for the greater caution, and in order that their rights

might be overridden by no such doctrine as that which is now so current among their descendents, that TENTH AMENDMENT to the Constitution, which declares that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I pass now, may it please your Honors, to that other doctrine which deduces this power from the clause of the Constitution giving Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any officer or department thereof." It is, as it seems to me, a singular proof of the weakness of the doctrine which undertakes to deduce the power to pass this act from this clause of the Constitution, that its advocates appear to lose sight entirely of the office and function which one great department of the national system was intended to perform; and thus make Congress not only the sole and exclusive judges of the necessity for the exercise of their powers, but the sole and exclusive judges of the extent of those powers. The argument, in order to be of any force, is obliged to maintain -that Congress, in reference to the interests and wants of the general government, may do whatever in their judgment is necessary to be done. And to such a length has this been carried, even in some judicial opinions, that the measure of Congressional powers has been, to use a familiar phrase, run into the ground;" and it is quite time that some tribunal of authority had rescued it from that position, in order that the doctrine of necessity may be prevented from destroying that Constitution which it certainly can never defend.

The Constitution of the United States established a limited government, with certain defined and carefully enumerated powers. As it was to leave in full operation certain other gov. ernments whose authority over the subjects not committed to Congress was to be exclusive and supreme, excepting in so far as it was subjected to a few particular prohibitions,—as it was to leave such governments in full operation, it was necessary that some means should be established, in order to apply the legislation of Congress to the grants of power in the Constitu

tion, and thus to ascertain whether it is within those grants. For this purpose, the judicial power of the United States was established, and endowed with authority to adjudicate on all "cases arising under this Constitution and the laws of the United States."

Now, it may with great significance be asked, why provide a judicial power,-a judicial department in the Federal Government-and endow it with authority to compare the legislation. of Congress with the grants of the Constitution-which is the meaning of adjudicating on "all cases arising under this Constitution"-if the sole test which the judiciary could apply under these circumstances was to be the Congressional judg ment of the necessity for that legislation? It is perfectly clear, from that inquiry, that there must be a judicial test to be applied by the judiciary after the Congressional judgment of necessity has been formed and acted upon; and that test is to be found in the measure of the authority of Congress, which is expressed in the clause of the Constitution which I have recited.

Now, in what does that measure consist? The answer is that it consists in elements of determination which are neither executive nor administrative reasons of policy or necessity, but which are involved in certain fundamental relations between the means chosen to execute a power, and the ends of the power that is to be executed. The two spheres of determination are entirely distinct, and involve entirely distinct considerations. A law of Congress, or an act of the national executive, may be necessary in the judgment of those who pass that law, or in the judgment of those who do that act. And yet they may bear no sort of relation to the Congressional powers, or to the executive powers, granted by the Constitution. On the other hand, if the measure enacted, or the thing done, or undertaken to be done, bears the proper constitutional relation to the power under which the act is claimed to be done, or the law is claimed to be passed, then the degree of its necessity, or its expediency, is altogether a legislative or administrative-that is to say, a discretionary-question.

It is the office of the judicial department to ascertain whether this constitutional relation exists between a law of Congress,