of using “public notes.” Of these eleven speakers, five, viz.: Madison, Mason, Gorham, Mercer, and Randolph expressed themselves as not in favor of wholly prohibiting the emission of bills. And so, in accounting for the large vote in favor of Morris’s motion, it is reasonable to suppose that a considerable number shared the opinion of Gorham, that striking out was not equivalent to prohibition. This sagacious policy of silence, rather than positive grant or positive prohibition, as regards the powers and duty of the Union, was resorted to on several occasions; they wished, as Gouverneur Morris is reported to have said of the instrument which they were preparing, to “make it as palatable as possible.” For example, on an unsuccessful motion to strike out a clause making the compensation of members of Congress payable out of the National treasury, Massachusetts voted to strike out; “not,” says Madison, “because they thought the State treasury ought to be substituted, but because they thought nothing should be said on the subject, in which case it would silently devolve on the National Treasury to support the National Legislature.” The members of the Convention were sensible that the Constitution, as Madison said, “had many obstacles to encounter,” and they preferred sometimes to leave the instrument silent rather than to invite opposition by express provisions, either one way or the other.
Such was the action of the framers of the Constitution as to the power to emit bills and the closely related topic of making them a legal tender. Turn now and consider that it is the established law of the country that Congress may emit bills. There is no doubt about that. It has been practised for seventy years and more; and Chief Justice Chase, in delivering the opinion of the Supreme Court of the United States, in Veazie Bank v. Fenno, says: “It
- 4 Ell. Deb. 611.
- Compare the striking out of a clause empowering Congress to grant charters of incorporation, a power which, nevertheless, it has, 5 Ell. Deb. 543, 544; and Jefferson’s comments, 4 ib. 610; and the note, ib. 611; and see Legal Tender Cases, 12 Wall. 559, per Bradley, J. Compare also the fate of Mr. Gerry’s motion (“he was not seconded”) to extend to Congress the prohibition which was put upon the States, as to impairing the obligation of contracts, 5 Ell. Deb. 546; see the remarks of Morris, ib. 485. Compare also the language of Madison, in his letter of Feb. 22, 1831, to C. J. Ingersoll; a certain evil which he is there discussing was not, he says, foreseen, “and, if it had been apprehended, it is questionable whether the Constitution of the United States (which had many obstacles to encounter) would have ventured to guard against it by an additional provision.” 4 Ell. Deb. 608.
- 8 Wall. 533, at p. 548.