Justice Miller, who delivered the dissenting opinion, took issue with the majority of the court on the question whether the notes would have served the purpose for which they were issued without the quality of legal tender. The power to make anything but gold and silver a tender in payment of debts, he said, was expressly forbidden to the States ; if it existed at all, it was confided to Congress, as an auxiliary to the power to borrow money, to raise and support armies, and to suppress insurrection. When by law the notes were made to discharge the function of paying debts, they had a perpetual credit or value, equal to the amount of all the debts, public and private, in the country. Without this provision, they would have fallen to the dead level of worthless paper. If this is true, Congress acted under the stress of absolute necessity; and if it is only partly true, the degree of necessity is for the legislature and not for the court to determine.

So the court divided on a purely economical question, whether the value of an inconvertible paper currency is enhanced by making it a legal tender. That the issue of United States notes was within the scope of Congressional authority, was conceded on both sides. The weight of economical opinion is undoubtedly with the majority of the court, and the premium on gold shows conclusively that the legal tender clause did not prevent a serious depreciation of the notes. Justice Miller gives no substantial reason for his theory that the relief which they afforded to the treasury would not equally have been afforded if the United States notes, like the national bank-notes, had been allowed to pass current by common consent at their market value.

In April, 1869, while this case was pending, Congress had passed an act increasing the number of judges of the Supreme Court from eight to nine. On the 1st of February, 1870, after the decision of the case, but before the judgment was entered, Justice Grier resigned. On the 18th of February, Justice Strong was appointed, and Justice Bradley on the 21st of March, making up the full bench of nine.1 It is not disputed that these appointments were made for the purpose of overruling the decision of the court in the case of Hepburn versus Griswold ;3 for although that decision applied strictly to such contracts only as were outstanding on the 25th of February, 1862, when the legal tender act was approved, it was seen that the entire principle of the law was involved, and it was feared that with gold still at 120 the notes, by some subsequent decision, might be deprived of their forced currency. If this had happened, the only consequence would have been that instead of reckoning gold at 120 and the notes at par, people would have quoted the notes at 83 and gold at par; for it would also have been held that outstanding contracts must be regarded as obligations to pay notes and not coin.

1 Supreme Court Reports. 12 Wallace, 52S, note.

2 Judge Strong had previously sustained the tender laws in an elaborate opinion, delivered from the Supreme bench of Pennsylvania, in the case of Shollen-berger versus Brinton. 52 Penn. State, 9.

The court, as reconstituted, ordered a hearing, at the December term of 1870, of two causes involving the application of the legal tender act to contracts both before and after its date.1

The first case was brought from the Circuit Court of the western district of Texas by one Knox, who in 1863 had bought of the Confederate authorities a flock of sheep belonging to Mrs. Lee, of Pennsylvania, and confiscated as the property of an alien enemy. Mrs. Lee, in 1867, brought suit for damages, and the judge in his charge reminded the jury that whatever award they might make could be discharged by the payment of United States notes. The plaintiff in the Supreme Court complained that this suggestion had led the jury improperly to increase the damages, which were fixed at $7368. It was contended that this instraction made a distinction between coin and paper tenders, after the passage of the legal tender act.

1 Supreme Court Reports, 12 Wallace, 457. The Le, gal Tender Cases.

The second case came from the Supreme Court of Massachusetts. One Parker had agreed, before the legal tender legislation was had, to convey a lot of land to one Davis, on the payment of a certain sum of money. Parker refusing to perform his obligation, the Massachusetts court, in 1867, ordered Davis to pay the money to the court, and Parker to execute the deed, in pursuance of the agreement. Davis thereupon paid the stipulated sum in legal tender notes, but Parker objected that he was entitled to payment in coin, and the objection being overruled, appealed to the Supreme Court at Washington. Mr. B. F. Thomas appeared for Parker, and General B. F. Butler for Davis. The court also ordered that Mr.Clarkson N.Potter,who had argued the case of Hepburn versus Gris-wold, should be heard against the constitutionality of the law, and Attorney-general Akerman in its support. The argument, which was very elaborate, was heard in April, 1871, and on the 1st of May the judgment of the courts below, in both cases, was affirmed; Justices Strong, Bradley, Miller, Swayne, and Davis concurring in the decision, and the Chief-justice and Justices Nelson, Clifford, and Field dissenting. By a majority of one, without any change of opinion on the part of the members of the court in 18G9, the prior decision was overruled, and the court was made to declare that the legal tender acts are constitutional when applied to contracts made before their passage, and valid as applicable to contracts made since.

On the loth of January, 1872, the opinion of the court was delivered by Justice Strong, and a concurring opinion was delivered by Justice Bradley. Dissenting opinions were read by Chief-justice Chase and by Justices Clifford and Field. The point of difference was still the question whether the legal tender acts had been in any degree essential to the maintenance of the credit of the government, at the time and under the circumstances when they were enacted.

Said Justice Strong:

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 he 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.

In the same way Justice Miller, in his dissenting opinion delivered in 1870, had admitted that in the extraordinary circumstances under which the legal tender acts were passed, must be found the vindication of the exercise of powers so extraordinary. His words were:

The legal tender clauses of the statutes under consideration were placed emphatically, by those who enacted them, upon their necessity to of the further borrowing of money and maintaining the army and navy. The debates of the two houses of Congress show that on this necessity alone could this clause of the bill have been carried; and they also prove, as I think, very clearly, the existence of the necessity. The history of that gloomy time, not to be readily forgotten by the lover of his country, will forever remain the full, clear, and ample vindication of the exercise of this power by Congress.

Justice Bradley went farther. After describing the power to give to bills of credit the quality of legal tender as an incident, following almost as a matter of course from the power to issue such bills, he proceeded :

I do not Bay that it is a war power, or that it is only to be called into exercise in time of war; for other public exigencies may arise in the history of a nation which may make it expedient and imperative to exercise it. But of the occasions when, and of the times how long, it shall be exercised and in force, it is for the legislative department of the government to judge.

If Justice Bradley has not changed his mind, he has already settled, for himself, the new phase of the question which 1 been presented to the court by the suit of Juilliard versus Greenman. This case grows out of a sale of cotton by the plaintiff, who is a citizen of New York, to the defendant, who is a citizen of Connecticut, in April, 18T9, for $5122 90, payable on delivery of the goods. Greenman tendered in payment $5100 in United States notes of the series of 1878, which had been redeemed and reissued under the act of May 31, 1878, and $22 90 in gold and silver coin. The coin was accepted on account, but the tender of United States notes was rejected, and Juilliard now claims judgment for $5100 with interest and costs. The case was submitted in the United States Circuit Court at New York in June, without argument, and a pro forma decision was rendered for the defendant, whereupon the plaintiff appealed to the Supreme Court. Mr. William Allen Butler appeared for Juilliard, and Mr. James McKeen for Greenman. It is understood that Senator Edmunds of Vermont will also argue for the plaintiff, and General B. F. Butler for the defendant at the hearing before the Supreme Court.

This case raises the distinct question whether Congress may properly authorize the issue of a forced currency in time of peace. Justice Bradley holds this to be a matter wholly within the discretion of Congress. Justices Miller and Strong seem to regard it as the exercise of a power which could only be properly invoked in time of war; but it is hard to find a logical foothold anywhere between a total denial of this power and the admission that it may be exercised at the discretion of Congress; and they, with Justice Swayne, will not improbably be driven to the conclusion of Justice Bradley. Justices Clifford and Field are committed against the constitutionality of this legislation under any circumstances. "What the three new judges, Chief-justice Waite and Justices Hunt and Harlan, may think, cannot be so easily inferred. It safe to say, however, that when the ques-tion comes to be argued again, it will be greatly simplified by the disappearance of the premium on gold and by the previous discussions. There will be no longer any pretence that the power claimed is neces-sary to maintain armies or suppress rebellion, but it will be presented as an incident to the power to borrow money. The precise proposition will be, that it is expedient to declare notes which are convertible into coin on demand, a legal tender, in order to keep them in circulation. This Assertion so contradicts everybody's experience, that it cannot be maintained; and the only remaining pretext will be the theory first propounded by Justice Strong, that a power which has been exercised by other nations must somehow belong to this. But if that be admitted, and the legislature be constituted the sole judge of the necessity for the exercise of such vague powers, it follows, as Chief-justice Chase pointed out, that the government becomes practically absolute and unlimited.