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pelled in any criminal case to be a witness against himself, &c.
The question of striking out the words inclosed above in brackets, and inserting in their place the words "without due process of law," was submitted to a vote of the people of the State in November, 1870, and resulted affirmatively, as follows: against grand jury system, 48,894; for grand jury system, 18,606.
An amendment to add to Article IV the following words:
"sec. 31. The Legislature is prohibited from enacting any special or private laws in the following cases: first, for changing the names of persons or constituting one person the heirat-law of another; second, for laying out, opening, or altering highways, except in cases of State roads extending into more than one county, and military roads to aid in the construction of which lands may be granted by Congress; third, for authorizing persons to
keep ferries across streams at points wholly within this State; fourth, for authorizing the sale or mortgage of real or personal property of minors or others under disability; fifth, for locating or changing any county seat; sixth, for assessment or collection of taxes, or for extending the time for the collection thereof; seventh, for granting corporate powers or privileges, except to cities; eighth, for authorizing the apportionment of any part of the school fund; ninth, for incorporating any town or village or to amend the charter thereof.
Sec. 32. The Legislature shall provide general laws for the transaction of any business that may be prohibited by section thirtyone of this article, and all such laws shall be uniform in their operation throughout the State"—was submitted to popular vote at the election in 1871, and was adopted—yeas, 54,087; nays, 3,675.
Supreme Court of the United States.
Nos. 10 and 17.—December Term, 1870.
William B. Knox, plaintiff in error,
In error to the Circuit Court of the United States for the western district of Texas.
Phoebe G. Lee and Hugh
Lee, her husband. Thomas H. Parker, plain-) In error to the Supreme tiff in error, \ Judicial Court of the
vs. j Commonwealth of
George Davis. J Massachusetts.
Mr. Justice Strong delivered the opinion of the Court.
The controlling questions in these cases are the following: Are the acts of Congress, known as the legal-tender acts, constitutional when applied to contracts made before their passage; and, secondly, are they valid as applicable to debts contracted since their enactment? These questions have been elaborately argued, and they have received from the court that consideration which their great importance demands. It would be difficult to over estimate the consequences which must follow our decision. They will affect the entire business of the country, and take hold of the possible continued existence of the Government. If it be held by this court that Congress has no constitutional power, under any circumstances, orin any emergency, to make Treasury notes a legal tender for the payment of all debts, (apowerconfessedly possessed by every independent sovereignty other than the United States,) the Government is withoutthose means of selfpreservation which, all must admit, may in certain contingencies become indispensable, even if they were not when the acts of Congress now called in question were enacted. It is also clear that if we hold the acts invalid as applicable to debtsincurred, or transactions which have taken
place since their enactment, our decision mus cause, throughout the country, great business derangement, widespread distress, and the rankest injustice. The debts which have been contracted since February 25, 1862, constitute, doubtless, by far the greatest portion of the existing indebtedness of the country. They have been contracted in view of the acts of Congress declaring Treasury notes a legal tender, and in reliance upon that declaration. Men have bought and sold, borrowed and lent, and assumed every variety of obligations contemplating that payment might be made with such notes. Indeed, legal-tender Treasury notes have become the universal measure of values. If now, by our decision, it be established that these debts and obligations can be discharged only by gold coin; if, contrary to the expectation of all parties to these contracts, legal tender notes are rendered unavailable, the Government has become an instrument of the grossest, injustice j all debttors are loaded with an obligation it was never contemplated they should assume; a large percentage is added to every debt, and such must become the demand for gold to satisfy contracts that ruinous sacrifices, general distress, and bankruptcy may be expected. These consequences are too obvious to admit of question. And there is no well-founded distinction to be made between the constitutional validity of an act of Congress declaring Treasury notes a legal tender for the payment of debts contracted after its passage and that of an act making them a legal tender for the discharge of all debts, as well those incurred before as those made after its enactment. There may be a difference in the effects produced by the acts, and in the hardship of their operation, but in both cases the fundamental question, that which tests the validity of the legislation, is, can Congress constitutionally give to Treasury notes the character and qualities of money? Can such notes be constituted a legitimate circulating medium, having a defined legal value? If they can, then such notes must be available to fulfill all contracts (not expressly excepted) solvable in money, without reference to the time when the contracts were made. Hence it is not strange that those who hold the legal-tender acts unconstitutional when applied to contracts made before February, 1862, find themselves compelled also to hold that the acts are invalid as to debts created after that time, and to hold that both classes of debts alike can be discharged only by gold and silver coin.
The consequences of which we have spoken, serious as they are, must be accepted, if there is a clear incompatibility between the Constitution and the legal-tender acts. But we are unwilling to precipitate them upon the country unless such an incompatibility plainly appears. A decent respect for a coordinate branch of the Government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligation of an oath of fidelity to the Constitution. Such has always been the rule. In Commonwealth vs. Smith, (4 Bin., 123,) the language of the court was: "it must be remembered that for weighty reasons, it has been assumed as a principle, in construing constitutions, by the Supreme Court of the United States, by this court, and by every other court of reputation in the United States, that an act of the Legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt;" and, in Fletcher ^s.Peck, (6 Cranch, 87,) Chief Justice Marshall said "it is not onslight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." It is incumbent, therefore, upon those who affirm the unconstitutionality of an act of Congress to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt.
Nor can it be questioned that when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is an universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a
constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a constitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. In Martin vs. Hunter, 1 Wheaton, 326, it was said, "the Constitution unavoidably deals in general language. It did not suit the purpose of the people in framing this great charter of our liberties to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution." And with singular clearness was it said by Chief Justice Marshall, in McCullough vs. The Bank of Maryland, 4 Wheaton,405: "Aconstitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which it may be carried into execution, would partake of the prolixity of a political code, and would scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." If these are correct principles, if they are proper views of the manner in which the Constitution is to be understood, the powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but a part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. It may, in a very proper sense, be treated as a means for the accomplishment of a subordinate object, but that object is itself a means designed for an ulterior purpose. Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and support armies, or to provide for and maintain a Navy, are instruments for the paramount object, which was to establish a Government, sovereign within its sphere, with capability of selfpreservation, thereby forming an union more perfect than that which existed under the old Confederacy.
The same maybe asserted also of all the non-enumerated powers included in the authority expressly given "to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof." It is impossible to know what those non-enumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes, it must be noted, reach beyond the mere execution of all powers definitely intrusted to Congress, and mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. It certainly was intended to confer upon the Government the power of self-preservation. Said Chief Justice Marshall, in Cohens vs. The Bank of Virginia, (6 Wheat.,414:) "America has chosen to be, in many respects and to many purposes, a nation, and for all these purposes her Government is complete ; for all these objects it is supreme. It can then, in effecting these objects, legitimately control all individuals or governments within the American territory." He added, in the same case: "A constitution is framed for ages to come, and is designed to approach immortality as near as mortality can approach it. Its course cannot always be tranquil, it is exposed to storms and tempests, and its framers must be unwise statesmen, indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to encounter." That would appear, then, to be a most unreasonable construction of the Constitution which denies to the Government created by it the right to employ freely every means, not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated or defined. In the nature of things enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the Government of the United States, or in any department or officer thereof.
"legal-tender" Decision Oe 1871.
And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined. And that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested
in the conventions of the States, and proposed at the first session of the First Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the "conventions of a number of the States had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." This wasthe origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the Government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.
And it is of importance to observe that Congress has often exercised without question powers that are not expressly given or ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregatepowers of the Government. He instances the right to sue and make contracts. Many others might be given. The oath required by law from officers of the Government is one. So is building a capitol or a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized "to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offenses against the laws of nations." It is also empowered to declare the punishment of treason, and provision is made for impeachments. This is the extent of power to punish crime expressly conferred. Itmight be argued that the expression of these limited powers implies an exclusion of all other subjects of criminal legislation. Such is the argument in the present cases. It is said because Congress is authorized to coin money and regulate its value it cannot declare anything other than gold and silver to be money or make it a legal tender. Yet Congress, by the act of April 30, 1790, entitled "An act more effectually to provide for the punishment of certain crimes against the United States." and the supplementary act of March 3, 1825, defined and provided for the punishment of a large class of crimes other than those mentioned in the Constitution, and some of the punishments prescribed are manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised has been affirmed by this court. (United States vs. Marigold, 9 Howard, 560.) This case shows that a power may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States, but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?
Indeed, the whole history of the Government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the Government was framed, and this discretion has generally been unquestioned, or, if questioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers created by the Constitution. Under the power to establish post offices and post roads Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of light houses, breakwaters, and buoys, the registry, enrollment, and construction of ships, and a code has been enacted for the government of seamen. Under the same power and other powers over the revenue and the currency of the country, for the convenience of the Treasury and internal commerce, a corporation known as the United States Bank was early created. To its capital the Government subscribed one fifth of its stock. But the corporation was a private one, doing business for its own profit. Its incorporation was a constitutional exercise of congressional power for no other reason than that it was deemed to be a convenient instrument or means for accomplishing one or more of the ends for which the Government was established, or, in the language of the first article, already quoted, "necessary and proper" for carrying into execution some or all the powers vested in the Government. Clearly this necessity, if any existed, was not a direct and obvious one. Yet this court, in McCullough vs. The State of Maryland, 4 Wheat., 416, unanimously ruled that in authorizing the bank Congress had not transcended its powers. So debts due to the United States have been declared by acts of Congress entitled to priority of payment over debts due to other creditors.
and this court has held such acts warranted by the Constitution. (Fishery. Blight, 2 Cranch, 358.)
This is enough to show how, from the earliest period of our existence as a nation, the powers conferred by the Constitution hav&been construed byCongress and by this court whenever such action by Congress has been called into question. Happily the true meaning of the clause authorizing the enactment of all laws necessary and proper for carrying into execution the express powers conferred upon Congress, and all other powers vested in the Government of the United States, or in any of its departments or officers, has long since been settled. In Fisher vs. Blight (above cited) this court, speaking by Chief Justice Marshall, said that in construing it "it would be incorrect and would produce endless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose it might be said with respect to each that it was not necessary because the end might be obtained by other means." Congress, said this court, "must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The Government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe." It was in this case, as we have already remarked, that a law giving priority to debts due to the United States was ruled to be constitutional for the reason that it appeared to Congress to be an eligible means to enable the Government to pay the debts of the Union.
It was, however, in McCullough vs. Maryland that the fullest consideration was given to this clause of the Constitution granting auxiliary powers, and a construction adopted that has ever since been accepted as determining its true meaning. We shall not now go over the ground there trodden. It is familiar to the legal profession, and, indeed, to the whole country. Suffice it to say, in that case it was finally settled that in the gift by the Constitution to Congress of authority to enact laws "necessary and proper" for the execution of all the powers created by it, the necessity spoken of is not to be understood as an absolute one. On the contrary, this court then held that the sound construction of the Constitution must allow to the national Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Said Chief Justice Marshall, in delivering the opinion of the court: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end3 which are not
prohibited, but consist with the letter and spirit of the Constitution, are constitutional." The case also marks out with admirable precision the province of this court. It declares that "when the law (enacted by Congress) is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department andto tread on legislative ground. This court (it was said) disclaimed all pretensions to such a power." It is hardly necessary to say that these principles are received with universal assent. Even in Hepburn vs. Griswold, 8 Wallace, 603, both the majority and minority of the court concurred in accepting the doctrines of McCullough vs. Maryland as sound expositions of the Constitution, though disagreeing in their application.
With these rules of constitutional construction before us, settled at an early period in the history of the Government, hitherto universally accepted and not even now doubted, we have a safe guide to a right decision of thequestions before us. Before we can hold the legaltender acts unconstitutional, we must be convinced they were not appropriate means, or means conducive to the execution of any or all of the powers of Congress, or of the Government, not appropriate in any degree, (for we are not judges of the degree of appropriateness,) or we must hold that they were prohibited. This brings us to the inquiry whether they were, when enacted, appropriate instrumentalities for carrying into effect or executing any of the known powers of Congress, or of any department of the Government. Plainly to this inquiry a consideration of the time when they were enacted, and of the circumstances in which the Government then stood, is important. It is not to be denied that acts may be adapted to the exercise of lawful power, and appropriate to it in seasons of exigency which would be inappropriate at other times. We do not propose to dilate at length upon the circumstances in which the country was placed when Congress attempted to make Treasury notes a legal tender. They are of too recent occurrence to justify enlarged description. Suffice it to say that a civil war was then raging which seriously threatened the overthrow of the Government, and the destruction of the Constitution itself. It demanded the equipment and support of large armies and navies, and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public Treasury was nearly empty, and the credit of the Government, if not stretched to its utmost tension, had become nearly exhausted. Moneyed institutions had advanced largely of their means, and more could not be expected of them. They had been compelled to suspend specie payments. Taxation was inadequate to pay even the interest on the debt already incurred, and it was impossible to await the income of additional taxes. The necessity was immediate and pressing. The Army was unpaid. There was then due to the
soldiersin the field nearly a score of millions of dollars. The requisitions from the War and Navy Departments for supplies exceeded fifty millions, and the current expenditure was over one million per day. The entire amount of coin in the country, including that in private hands, as well as that in banking institutions, was insufficient to supply the need of the Government three months, had it all been poured into the Treasury. Foreign credit we had none. We say nothing of the overhanging paralysis of trade, and of business generally, which threatened loss of confidence in the ability of the Government to maintain its continued existence, and therewith the complete destruction of all remaining national credit.
It was at such a time and in such circumstances that Congress was called upon to devise means for maintaining the Army and Navy, for securing the large supplies of money needed, and, indeed, for the preservation of the Government created by the Constitution. It was at such a time and in such an emergency that the legal-tender acts were passed. Now, if it were certain that nothing else would have supplied the absolute necessities of the Treasury, that nothing else would have enabled the Government to maintain its armies and Navy, that nothing else would have saved the Government and the Constitution from destruction, while the legal-tender acts would, could any one be bold enough to assert that Congress transgressed its powers? Or if these enactments did work these results, can it be maintained now that they were not for a legitimate end, or "appropriate and adapted to that end," in the language of Chief Justice Marshall? That they did work such results is not to be doubted. Something revived the drooping faith of the people; something brought immediately to the Government's aid the resources of the nation, and something enabled the successful prosecution of the war, and tho preservation of the national life. What was it if not the legal-tender enactments?
But if it be conceded that some other means might have been chosen for the accomplishment of these legitimate and necessary ends, the concession does not weaken the argument. It is urged now, after the lapse of nine years, and when the emergency has passed, that Treasury notes without the legal-tender clause might have been issued, and that the necessities of the Government might thus have been supplied. Hence it is inferred there was no necessity for giving to the notes issued the capability of paying private debts. At best this is mere conjecture. But admitting it to be true, what does it prove? Nothing more than that Congress had the choice of means for a legitimate end, each appropriate and adapted to that end, though perhaps in different degrees. What then? Can this court say that it ought to have adopted one rather than the other? Is it our province to decide that the means selected were beyond the constitutional power of Congress because we may think that other means to the same ends would have been more appropriate and equally efficient? That would be to assume legislative