taxation;38 nor are shares of stockholders in national banks.39 Such stock, however, cannot be taxed at a higher rate than is imposed upon the shares of any bank organized under the authority of the State levying the tax, nor at a higher rate than is assessed upon other moneyed capital, and such tax can only be laid under authority of State in which the bank taxed is located.40 $142. The legal tender cases. The question as to whether Congress has the power to borrow money indirectly by making paper money issued by the United States legal tender, has proved one of the most difficult ones presented to the courts of the United States. ** * * This point was one left open by the framers of our Constitution. The first draft of the Constitution (as reported by the Committee of Detail, August 6, 1787) contained among the powers granted to Congress, the power "To borrow money, and emit bills on the credit of the United States." Ten days later the convention struck out the words 'and emit bills' by a vote of nine States to two; but did not expressly prohibit to the United States Government the power to emit such bills as they had prohibited this power to the State government. The matter was thus left in such a position that the United States was neither given nor denied the right to emit bills of credits. Neither did the Constitution prohibit the United States Government, as they did prohibit the State governments, from making anything but gold and silver coin a tender in payment of debts. The whole question was left open to be settled by the course of events. The subject was finally brought up for settlement by the laws passed during the Civil War period by the United States Government, making the paper currency issued by the United States a legal tender in pay of debts, including debts due at the time of the passage of the law. In the earlier cases which came before the Supreme Court2 tenders had been made in paper currency for debts which according to the terms of their contracts were payable in gold or silver coin or "in specie." In these cases it was held that the tenders were not sufficient as the contracts expressly stated in what kind of money payment should be made. Mr. Justice Miller dissented from all these opinions, holding that it was the intention of Congress to make the notes of the United States a legal tender for all private debts, without regard to the intention of the parties to the contract. 43 The constitutionality of these Acts with regard to general debts was passed upon in the cases of Hepburn v. Griswold, Knox v. Lee, and Parker v. Davis, commonly referred to as the Legal Tender Cases, and in Julliard v. Greenman.45. 44 In the case of Hepburn v. Griswold the contract on which the debt was due antedated the passage of the Act making the paper currency a legal tender in payment of debts. The decision in this case was against the constitutionality of this Act. Mr. Chief Justice Chase, who delivered the opinion of the Court, took as the rule for determining whether an Act of Congress could be supported as an exercise of implied power, the statement laid down by Chief Justice Marshall in McCulloch v. the State of Maryland, "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 end, which are not prohibited, but consistent with the spirit and letter of the Constitution, are constitutional." Chief Justice Chase then proceeded to argue for a distinction between those acts which were "appropriate" for carrying a granted power into execution and those which might in some slight degree promote an end within the scope of a general power. To include the latter within the implied power of Congress would, he argued, be dangerous. 42 Bronson v. Rodes, 7 Wallace, 229; Butler v. Horwitz, 7 Wallace, 256, 258; Bronson v. Kimpton, 8 Wallace, 444. 43 38 Wallace, 603, 605. 457. 45 110 U. S. 421. "It would convert the Government which the people ordained as a government of limited powers into a government of unlimited powers. It would confuse the boundaries which separate the Executive and Judicial from the Legislative authority. It would obliterate every criterion which this Court, speaking through the venerated Chief Justice in the case already cited, established for the determination of the question whether legislative acts are constitutional or unconstitutional. We are unable to persuade ourselves that an expedient of this sort is an appropriate and plainly adapted means for the execution of the power to declare and carry on war. If it adds nothing to the utility of the notes, it cannot be upheld, as a means to end in furtherance of which the notes are issued. Nor can it, in our judgment, be upheld as such if, while facilitating in some degree the circulation of the notes, it debases and injures the currency in its proper use to a much greater degree. "But there is another view which seems to us decisive, to whatever express power the supposed implied power in question may be referred. In the rule stated by Chief Justice Marshall, the words appropriate, plainly adapted, really calculated, are qualified by the limitations that the means must be not prohibited, but consistent with the letter and spirit of the Constitution. Nothing so prohibited or inconsistent can be regarded as appropriate, or plainly adapted, or really calculated means to any end. "Let us inquire then, first, whether making bills of credit a legal tender to the extent indicated is consistent with the spirit of the Constitution. Among the great cardinal principles of that instrument no one is more conspicuous or more venerable than the establishment of justice. And what was intended by the establishment of justice in the minds of the people who ordained it, is, happily, not a matter of disputation. It is not left to inference nor conjecture, especially in its relations to contracts. It is then argued that, although there is no express prohibition to the United States, as there is to the States, to pass laws impairing the obligations of contracts, still by the general force and tenor of the Constitution they are prohibited from passing any such laws, except such as only impair them inci dentally. The Legal Tender Act is held to impair the obligation of contracts and also to be in violation of the Fifth Amendment, which provides that, 'No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.'" Mr. Justice Miller delivered a dissenting opinion, in which Justices Swayne and Davis concurred. At the time of the argument and decision in Hepburn v. Griswold, there were two vacancies in the Supreme Court. These two vacancies were filled upon the 7th of February, 1870, the same day upon which the decision of the Court in Hepburn v. Griswold was rendered. This same question as to the constitutionality of the Legal Tender Acts came up again before the Supreme Court, with its increased membership, the following year in the cases of Knox v. Lee and Parker v. Davis. 46 The result in these cases was a reversal of the decision in Hepburn v. Griswold and a decision in favor of the constitutionality of the Legal Tender Acts, such decisions being based mainly on the ground of expediency and public necessity, and upheld as a proper and necessary war measure. Mr. Justice Strong delivered the opinion of the Court, which was in part as follows: "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 overestimate 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, or in any emergency, to make treasury notes a legal tender for the payment of all debts (a power confessedly possessed by every independent sovereignty other than the United Parker v. Davis, 12 Wallace, 457. States), the Government is without the means of self-preservation, which, all must admit, may, in certain contingencies, become indispensable even if they were not when the Acts of Congress not called in question were enacted. It is also clear that if we hold the Acts involved as applicable to debts incurred, or transactions which have taken place since their enactment, our decision must 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 existency 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 inade with such notes. Indeed, legal tender treasury notes become the universal measures of value. 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; all debtors 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 passage and that of an Act making them a legal tender for the discharge of all debts, as well as those incurred before as those made after its enactment. There may be a difference in the effects produced by the Acts, and the hardship of this 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 quality of money? Can such notes be constituted a legitimate circulating medium, having a defined legal value? If they can, then such |