amount, to borrow money also without limitation, and to coin money, dispose of the public lands, and to appropriate all moneys in the public treasury to that purpose.

Weighed in the light of these suggestions, as the question under discussion should be, it is plain, not only that the exercise of such an implied power is unnecessary to supply the sinews of war, but that the framers or the constitution never intended to trust a matter of such great and vital importance as that of raising means for the national defense or for the prosecution of a war to any implication whatever, as they had learned from bitter experience that the great weakness of the confederation during the war for independence consisted in the want of such express powers. Influenced by those considerations the framers of the constitution not only authorized congress to levy and collect taxes, duties, imposts, and excises to any and every extent, but also to coin money and to borrow money without any limitation as to amount, showing that the argument that to deny the implied power to make paper emissions a legal tender will be to cripple the government, is a mere chimera, without any solid constitutional foundation for its support.

Comprehensive, however, as the power of federal taxation is, being without limitation as to amount, still there are some restrictions as to the manner of its exercise, and some exceptions as to the objects to which it may be applied. Bills for raising revenue must originate in the house of representatives; duties, imposts, and excises must be uniform throughout the United States; direct taxes must be apportioned according to numbers; regulations of commerce and revenue shall not give any preference to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another; nor shall any tax or duty be laid on articles exported from any state.

Preparation for war may be made in peace, but neither the necessity for such preparation nor the actual existence of war can have the effect to abrogate or supersede those restrictions, or to empower congress to tax the articles excepted from taxation by the constitution. Implied exceptions also exist, limiting the power of federal taxation as well as that of the states,

and when an exception of that character is ascertained the objects falling within it are as effectually shielded from taxation as those falling within an express exception, for the plain reason that the "government of the United States is acknowledged by all to be one of enumerated powers," from which it necessarily follows that powers not granted cannot be exercised.

Moneys may be raised by taxes, duties, imposts, and excises to carry on war as well as to pay the public debt or to provide for the common defense and general welfare, but no appropriation of money to that use can be made for a period longer than two years, nor can congress, in exercising the power to levy taxes for that purpose, or any other, abrogate or supersede those restrictions, exceptions, and limitations, as they are a part of the constitution, and as such are as obligatory in war as in peace, as any other rule would subvert, in time of war, every restriction, exception, limitation, and prohibition in the constitution, and invest congress with unlimited power, even surpassing that possessed by the British parliament.

Congress may also borrow money to carry on war, without limitation, and in exercising that express power may issue treasury notes as the requisite means for carrying the express power into execution; but congress cannot constitute such notes a standard of value, nor make them a legal tender, neither in time of war nor in time of peace, for at least two reasons, either of which is conclusive that the exercise of such a power is not warranted by the constitution: (1.) Because the published proceedings of the convention which adopted the constitution, and of the state conventions which ratified it, show that those who participated in those deliberations never intended to confer any such power. (2.) Because such a power, if admitted to exist, would nullify the effect and operation of the express power to coin money, regulate the value thereof and of foreign coin, as it would substitute a paper medium in the place of gold and silver coin, which, in itself, as compared with coin, possesses no value, is not money, either in the constitutional or commercial sense, but only a promise to pay money, is never worth par, and often much less, even as domestic exchange,

and is always fluctuating and never acknowledged either as a medium of exchange or a standard of value in any foreign market known to American commerce.

Power to issue such notes, it is conceded, exists without limitation; but the question is, whether the framers of the constitution intended that congress, in the exercise of that power or the power to borrow money, whether in peace or war, should be empowered to constitute paper emissions of any kind a standard of value, and make the same a legal tender in payment of debts. Mere convenience, or even a financial necessity in a single case, cannot be the test; but the question is, what did the framers of the constitution intend at the time the instrument was adopted and ratified?

Constitutional powers of the kind last mentioned — that is, the power to ordain a standard of value and to provide a cirenlating medium for a legal tender- are subject to no mutations of any kind; they are the same in peace and in war. What the grants of power meant when the constitution was adopted and ratified they mean still, and their meaning can never be changed except as described in the fifth article providing for amendments, as the constitution " is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, and under all circumstances."

Delegated power ought never to be enlarged beyond the fair scope of its terms, and that rule is emphatically applicable in the construction of the constitution. Restrictions may at times be inconvenient, or even embarrassing; but the power to remove the difficulty by amendment is vested in the people, and if they do not exercise it, the presumption is that the inconvenience is a less evil than the mischief to be apprehended if the restriction should be removed and the power extended, or that the existing inconvenience is the lesser of the two evils; and it should never be forgotten that the government ordained and established by the constitution is a government " of limited and enumerated powers," and that to depart from the true import and meaning of those powers is to establish a new constitution or to do for the people what they have not chosen to

do for themselves, and to usurp the functions of a legislator and desert those of an expounder of the law. Arguments drawn from impolicy or inconvenience, says Judge Story, ought here to be of no weight, as "the only sound principle is to declare ita lex scripta est, to follow and to obey."

For these reasons I am of the opinion that the judgment in each of the cases before the court should be reversed.

CHAPTER IV.

W

DISSENTING OPINION OF JUSTICE FIELD.

HILST I agree with the chief justice in the views expressed in his opinion in these cases, the great importance which I attach to the question of legal tender induces me to present some further considerations on the subject.

Nothing has been heard from counsel in these cases, and nothing from the present majority of the court, which has created a doubt in my mind of the correctness of the judgment rendered in the case of Hepburn v. Griswold, or of the conclusions expressed in the opinion of the majority of the court as then constituted. That judgment was reached only after repeated arguments were heard from able and eminent counsel, and after every point raised on either side had been the subject of extended deliberation.

The questions presented in that case were also involved in several other cases, and had been elaborately argued in them. It is not extravagant to say that no case has ever been decided by this court, since its organization, in which the questions presented were more fully argued or more maturely considered. It was hoped that a judgment thus reached would not be lightly disturbed. It was hoped that it had settled forever, that under a constitution ordained, among other things, "to establish justice," legislation giving to one person the right to discharge his obligations to another by nominal instead of actual fulfillment could never be justified.

I shall not comment upon the causes which have led to a reversal of that judgment; they are patent to every one. I will simply observe, that the chief justice and the associate justices who constituted the majority of the court when that judgment was rendered, still adhere to their former convictions. To