in order to the accomplishment of any granted power, to give this currency the attribute of being a legal tender. Then the court divides: the majority, headed by the Chief Justice, come to the conclusion that this attribute was not necessary to the accomplishment of any granted power; the minority, headed by Mr. Justice Miller, think it was. Moreover, the majority hold that even if they had come to a different conclusion, and had conceded the necessity of giving to these notes this character of legal tender, they would still have been obliged to declare the law unconstitutional, because it conflicted with the "spirit" of the Constitution by impairing the obligation of contracts, and with its letter, by taking private property for public use without compensation, and depriving persons of their property without due process of law. The minority, on the other hand, decline to admit the existence in the Constitution of any such code of ethics, and assert that neither of the two prohibitions referred to can be held to have any application to such a case as this.

We cannot leave this subject without a few further suggestions. Coinciding as we do with the opinion of the minority of the court, in holding that neither the spirit of "justice," nor the express provisions of the Constitution regarding private property, prohibit Congress from issuing and giving the quality of legal tender to a currency; and believing, that, if it is admitted that Congress has deemed such action needful for the attainment of a lawful end, the court must regard the decision of Congress on this question of necessity as final, — there is, in the opinion of the majority of the court, so far as we can see, no sufficient ground for holding the law unconstitutional. But, in our judgment, the majority of the court left their strongest ground when they conceded to their opponents the power in the General Government of issuing a paper currency. That power granted, the giving a legal tender character to that currency is merely a question for the discretion of Congress, unless the "spirit" or the letter of the Constitution prohibit any legislation of this kind as affecting private property. We do not regard these objections as able to stand. But we do consider it as a fair matter for argument certainly, whether, under a reasonably strict interpretation of the Constitution, Congress is not prohibited, by fair implication, from issuing a note currency. Unless this power is incident to that of borrowing money, it is not given even by implication in any of the financial clauses of the Constitution. And it is certainly a fair question, whether Congress, having express grants of the power to coin money, to borrow that money, and to fill its coffers by taxation with that money, has any further financial powers: whether the power to emit bills of credit as currency is not a different sort of thing altogether; and whether it is not reasonable to suppose that the express grants of coining, borrowing, and taxing, exhaust the financial power of Congress on the subject of the

currency.

If it be said that the power to issue a note currency is incidental to the power to make war, to maintain an army and navy, &c., it may be replied, that it is equally incidental to all the other powers of the Government, for all require money for their exercise; and the fact that the war power requires more money than the post-office, for instance, does not change the relation which a currency law bears to both powers. A law providing a note currency for the payment of the *soldiers or of the postmasters is undoubtedly a law having for its object the exercise of a power granted to Congress; and there is no express prohibition in

the Constitution against such a law; but is not the whole subject of the ways and means of meeting these expenditures covered by certain express financial provisions in the Constitution? Towns and cities, for instance, have the power to erect town-halls; school-houses, &c., and, for this purpose, have the power to tax and the power to borrow. But could a town legally pay its contractors in certificates of indebtedness of the description and denominations of currency? We are not now speaking of the legal tender question at all, but simply of the power to issue certificates of indebtedness in the form of currency notes. If, then, the power to issue a paper currency is not properly deducible from the power to borrow, or the power to tax, or the power to coin, and if it be maintained that all the powers of the Federal Government in the matter of money are confined to these three expressly given powers, we think that there might be a pretty strong argument made out against the issue of any paper currency at all.

However this might have been decided, had the whole question been met fairly by the court when it was first presented, in Bronson v. Rodes, it is certainly now settled law that a note currency is within the powers of Congress. All the court agree in this, as we learn from the opinions in the case before us; and we do not mean to doubt the correctness of the decision. But we do mean to say, that those who admit the power of Congress to issue notes as currency must admit the power of Congress to make those notes a legal tender for pre-existing debts, unless they coincide with the Chief Justice in his view that the "spirit" of the Constitution is violated by such a law, or that the clauses relating to taking private property without compensation, and depriving a man of his property without due process of law, apply to the incidental loss suffered by a creditor when he is obliged to receive legal tenders instead of gold.

If, on the other hand, it is admitted that Congress, acting for a lawful end, can issue notes as currency, that the General Government is bound by no ethical principle as to the incidental effect of its legislation on existing contracts, and that the two prohibitions above referred to cannot, by any sound construction, be held to embrace such incidental effect, then, we submit, that Congress can go farther, and can make its notes a legal tender for existing debts, without exceeding its powers under the Constitution of the United States.

SINCE our last issue, the nomination of the Attorney General, as Associate Justice of the Supreme Court, has been rejected by the Senate, and Judge Strong, of Pennsylvania, and Mr. Bradley, of New Jersey, have been nominated to fill the vacant places upon the Bench. They have both, after some delay, been confirmed and have taken their seats on the Bench.

Judge Grier, after more than twenty-three years of service on the Bench of the Supreme Court, retired on Feb. 1, 1870.

BAR ASSOCIATION.

NEW YORK.

The space devoted to the legal tender decision compels us to omit most of the matter which we had prepared for the Summary. But we cannot let this number go to press without an expression of our best wishes for the Bar Association which has been started in New York under such prom

ising auspices. We all know the evil name that some of the New York judges have gotten themselves, but the Bench could never have become what it is if the Bar had been what it ought to be. We hail with delight this attempt to clear its skirts from shame and disgrace, and trust that the Association will be, in the words of Mr. Evarts, "an honest, a sincere, a brave, a considerate, a determined, a persistent, and an absolutely fearless organization of the Bar of New York." The following are the most important provisions of the Constitution of the Bar Association, adopted Feb. 15, 1870:

ARTICLE I.

This Association shall be called "The Bar Association of the City of New York."

ARTICLE II.

The Association is established to maintain the honor and dignity of the profession of the law, to cultivate social intercourse among its members, and to increase its usefulness in promoting the due administration of justice.

ARTICLE III.

SECTION I.

The members of the Bar who signed the preliminary articles are hereby declared to be members of this Association, but such of them as shall omit to subscribe to this Constitution, and pay the admission fee, on or before the 15th day of March next, shall cease to be members, and can only become such by subsequent admission.

Any member of the profession, in good standing, residing or practising in the city of New York, may become a member, by vote of the Association, on recommendation of the Committee on Admissions as hereinafter provided, and on subscribing to this constitution and paying the admission fee.

SECTION II.

The Committee on Admissions shall have power to make such regulations in relation to proposals for membership and notice thereof, as they may from time to time deem needful. Candidates against whom there shall be five negative votes in the committee shall not be recommended for admission. Upon being recommended, a vote by ballot shall be taken in the Association, and one negative vote in every five shall exclude the candidate.

ARTICLE IX.

ADMISSION AND ANNUAL FEES.

The admission fee shall be fifty dollars, to be paid on signing the constitution. The annual dues shall be forty dollars, payable half-yearly, on the first days of May and November, each year; and any member in default, after thirty days' notice, shall cease to be a member, unless excused by order of the Executive Committee.

In case of members of less than six years' standing at the Bar, the Executive Committee may, until they shall have attained that standing, give them a credit for one-half their initiation fee, and remit one-half their annual dues.

ARTICLE X.

Any member of the Association may be suspended or expelled for misconduct in his relations to this Association or in his profession, on conviction thereof in such manner as may be prescribed by the By-laws, and all interest in the property of the Association, of persons resigning or otherwise ceasing to be members, shall vest in the Association.

UNITED STATES DISTRICT COURT (Southern District of New York), BLATCHFORD, J.-John N. Cushing et al. v. John Laird the younger. Libel in admiralty in personam in a cause of spoliation civil and maritime. The substance of the libel is that the ship Sonora, owned by the libellants, was, on the 26th December, 1863, while on the high seas in the Straits of Malacca, piratically burned and entirely destroyed by the master of an armed vessel called the Alabama, then owned by the respondent. The respondent is a subject and resident of the Kingdom of Great Britain, and was not in the United States at the time of the commencement of these proceedings, and has not been within the limits of the United States since that time, and has not appeared in said proceedings. Certain effects and credits of the respondent in the hands of garnishees were attached. Motion was made to discharge as against certain of the garnishees the attachment made under said process. The main question argued on the motion was the question of jurisdiction. It was contended for the garnishees that the court had no jurisdiction of the action, because it had acquired none of the person of the respondent, and that the inhibition of the eleventh section of the Act of Sept. 24, 1789 (1 U. S. Stat. at Large, 78) was applicable. But the court held that as it did not appear that the defendant ever had been an inhabitant of the United States, the provision from the eleventh section did not apply, even though it should be conceded that this suit was such a civil suit as was intended by the provision in that section: that the processes in this case were such as were authorized by the second rule in admiralty prescribed by the Supreme Court in March, 1845, providing that " In suits in personam the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capias; or by a warrant of arrest of the person of the defendant, with a clause therein that if he cannot be found, to attach his goods and chattels to the amount sued for, or, if such property cannot be found, to attach his credits and effects to the amount sued for, in the hands of the garnishees named therein," &c.; that the exercise of jurisdiction in admiralty through the service of such process was held to be rightful in Manro v. Almeida (10 Wheat. 473). But it was farther contended in behalf of the garnishees, that title 28 of "Clerke's Praxis," cited by the court in Manro v. Almeida, in support of their view, and the decision in that case, went no farther than to hold that the process of attachment is proper in a civil cause in personam in admiralty where the defendant has concealed himself or has absconded, and not in a case like the 'present, where he is merely absent, and cannot be properly said to have concealed himself or to have absconded. But the court said that titles of Clerke were incorrectly rendered in the translation referred to in Manro v. Almeida, and that an examination of the original showed the proceeding to apply to absence as well as to absconding; and held that no sound difference in principle could be maintained between the propriety of resorting to the species of attachment referred

to in a case where the defendant is absent from the jurisdiction by absconding and in other cases of absence, there being equally in all cases the want of proper personal service of the process, on the respondent, and the absence of the defendant from the jurisdiction and the presence of attachable property within the jurisdiction and that the practice of issuing a foreign attachment against the property of a respondent in the hands of third persons in order to compel the appearance of the respondent in a suit in personum, and to apply such property to the satisfaction of the decree in the suit has been the practice recognized as appropriate in civil suits in admiralty in the admiralty courts in the Southern District of New York and in Massachusetts (citing Reed v. Hussey, 1 Bl. & How. 525; Shorey v. Rennell, 1 Sprague, 418; and Atkins v. The Fibre Disintegrating Co., 1 Benedict, 118); and that the cases of Wilson v. Pierce (15 Monthly Law Reporter, 137), and Blair v. Bemis, in the District Court for Connecticut, were opposed to the general current of authority and to the understanding and practice of the profession. The N. Y. Daily Transcript, March 17, 1870.