Open main menu

Page:Harvard Law Review Volume 1.djvu/88

This page has been validated.

but it was not. Mr. Gorham’s view is now the accepted one; the striking out was the removal of an express grant of power, but it was not a prohibition of the power. It had the effect to leave the question of power to be settled as it might arise, as in the instance of striking out the grant of power to grant charters of incorporations.[1] And so as regards the further question of the power to make the currency a legal tender, this act of striking out the words “and emit bills on the credit of the United States” was merely neutral. We have seen that most of those who took part in the debates of the Convention appear to have thought that if the power of emitting bills of credit should exist at all, the power to make them a legal tender would also exist if it were not expressly prohibited. Although Madison seems to have conceived that dropping the power to emit bills would not wholly deprive the Union of that power, while it would leave it destitute of the power to make its issues a tender, yet, as Mr. Justice Gray remarks,[2] “he has not explained why” he thought so. He also thought that there would be no power to issue them as a currency, or to establish any paper currency; which is not so. And he thought, too, that forbidding the issuing of bills of credit to the States was only forbidding such as are made a legal tender;[3] which was not so. “The Constitution itself,” said Marshall, C. J., in Craig v. The State of Missouri,[4] “furnishes no countenance to this distinction. The prohibition [in the case of the States] is general. It extends to all bills of credit, not to bills of a particular description.”

Ⅱ.But while it is true that no argument can be drawn from the action of the Convention in dealing with the power of Congress to emit bills of credit, against its power to give the quality of legal tender to its paper currency, yet it may, of course, be true for other reasons that Congress has no such power. This was strongly declared by Mr. Webster, in his speech on the “Specie Circular,” delivered in the Senate of the United States on the 21st of December, 1836. The debate related to an order of the Secretary of the Treasury to certain officials to require the payment of gold and silver for public lands. Mr. Webster said:[5] “What is meant by the ‘constitutional currency’ about which so much is said? What

  1. See also the express proviso of Art. IV. Sect. 3, as to the Territories.
  2. 110 U. S. at p. 443.
  3. Letter to C. J. Ingersoll, Feb. 22, 1831, 4 Ell. Deb. 608.
  4. 4 Pet. 410, at p. 434.
  5. Webster’s Works, Ⅳ. 270, 271.