SUMMARY OF EVENTS.

UNITED STATES.

LEGAL TENDER.

THE two following letters have been received by us on the Legal Tender decisions. We publish them with pleasure; they seem to present the grounds on which the unconstitutionality of the Legal Tender Act can be, if it can be at all, sustained.

THE EDITORS OF THE AMERICAN LAW REVIEW.

GENTLEMEN,-In your learned examination of the opinions of the Supreme Court of the United States in the case of Hepburn v. Griswold, contained in the April number of the Law Review, there are a few suggestions as to the constitutionality of the Legal Tender Act, to which, if you will allow me, I should like to call your attention. In making these suggestions you express the opinion that "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;" and you say, in conclusion, "If . . . it is admitted that Congress, acting for a lawful end, can issue notes as currency, . . . then, we submit, that Congress can go further, and make its notes a legal tender for existing debts, without exceeding its powers under the Constitution of the United States." It seems to me clear that the Government has the power to issue the notes: that the power to go further and make them a legal tender follows from the former power is not so clear. Both of them depend on the Constitution, and their validity can only be ascertained by a reference to that.

...

Now does the Constitution, expressly or by implication, prohibit Congress from raising money by issuing these notes, or making them a legal tender for debts? The powers are not expressly prohibited, nor even mentioned; if prohibited, it is by the construction which must be given to the Constitution by the rules which have been established for its interpretation. The rules are not arbitrary nor technical, but are such as recommend themselves to every intelligent mind. The one to which I shall refer is that which prescribes that, where the Constitution gives a power without declaring the means for carrying it into effect, it gives the powers necessary and proper for the purpose; but where it gives a power and prescribes the means of exercising it, there no means can be employed other than those expressly granted. This rule was applied in the celebrated case of Marbury v. Madison, 1 Cranch, 137, and its soundness has never been doubted. In that case, the question was whether the Supreme Court could issue a writ of mandamus to the Secretary of State. The Constitution provides: "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." The Judiciary Act of 1789 authorized the court to "issue

writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The court held that the words of the Constitution were negative of all original jurisdiction other than that expressly granted, and that so much of the clause of the Judiciary Act as gave the court original power to issue writs of mandamus was unwarranted by the Constitution, and therefore void. In construing these clauses of the Constitution and the statute, Chief-Justice Marshall says, "Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it."

The object of the Government in issuing treasury notes, and making them a legal tender, was to raise money for public purposes. If the Constitution does not point out the method to be pursued, Congress may adopt any appropriate means; but if the means are pointed out, then no others can be resorted to. The section which enumerates the powers of Congress specifies the following, to coin money; to lay and

collect taxes, duties, imposts, and excises; to borrow money. These are the powers expressly given for raising money. Does any one of them authorize the issue of notes, or making them a legal tender?

To borrow money is a term which admits of no ambiguity; it designates a transaction in which every individual, competent to contract, can take part; it is a power frequently granted to corporations; it is a power which has been granted to Congress. It is a contract in which one delivers money to another, who promises to repay it. Like other contracts, it binds the parties to it, and no one else. If, indeed, one of the contracting parties possessed a right over the person or property of a third person, he might dispose of it as of his own, but such a right as this must be derived from some other source than the power to borrow which he possesses in common with every other natural person. Its meaning being defined and settled as applied to individuals, when the same term is used in granting power to a corporation or a legislature, it conveys the same power and no more. No expansion of its meaning can be claimed on the ground that it is applied to a body possessing sovereign and legislative powers; the words must be taken to be used in the same sense as when they are applied to the other transactions of men; for it would be impossible to discover the meaning of the authors of the Constitution, unless their words were used by them in the sense in which they are used by other people. In borrowing, if no express promise to repay is made, it is implied; if expressed, it may be in writing, and take various forms, and also may specify the time and place of payment, and stipulate for the payment of interest. When the United States borrow money in the last-mentioned manner, their written obligations are generally in the form of bonds. Every borrower may put his agreement to repay into the form of a negotiable promissory note, payable on demand; the United States have done this, and their notes are called treasury notes. This is the ground on which they have the power to issue these notes; it is a simple act of borrowing, in which the contract of the United States is put into the form of a promissory note; and in receiving the money, and giving their notes for it, they did what every individual has a right to do when he borrows.

But that this power to borrow does not include making the evidences of the loan a legal means of satisfying other people's demands, is so simple a proposition that it seems only necessary to state it. There is the contract between the Government, and (for example), a bank, by which the bank lends, and the Government borrows, and gives its written promise to pay; in addition to this contract the Government imposes on all its subjects the obligation to receive these promises as payment of the debts due them from the bank, and it grants to the bank the privilege of discharging in this

way its obligations to others. Is the power to impose this obligation and to grant this privilege, in addition to the contract, derived from, or a part of, the power to make the contract? Does the power to do one thing include the power to do two things? It seems to me that, if the power to borrow includes the power to do these things, on the same principle it includes the power to authorize those subjects who will lend their money to the Government to pay their debts with their own notes, or to discharge their debts by paying fifty cents on a dollar, or even to grant them entire immunity from the demands of creditors. If that power were incidental to this particular power to contract, it would be incidental to a general power to contract; but no other persons, not even those who possess unlimited powers to contract, possess this incidental power. If it is possessed by the Government, it will be found somewhere in the Constitution; we are now examining the clause authorizing Congress to borrow money, and we do not find it there. Under that clause Congress can, indeed, adopt the most effectual and appropriate means of borrowing, but it cannot borrow and do something else besides.

The only other powers which the Constitution gives for raising money, are those of coining and taxing. That the Legal Tender Act does not derive its validity from these seems unquestionable. I am not aware that it has ever been pretended that it could rest on either of these clauses, and therefore I omit to discuss them.

The authors of the Constitution, by providing these powers for raising money, prohibited by implication the exercise of others. The power to make notes a legal tender, not being found among those provided, is therefore prohibited. This construction is in accordance with the rule in Marbury v. Madison, to which I have referred, and is the only one which gives effect to the words of the Constitution. Very respectfully yours,

BOSTON, May 6, 1870.

TO THE EDITORS OF THE AMERICAN LAW REVIEW.

T.

GENTLEMEN, — It is easy to admit that some powers, as to which the Constitution is silent, may be claimed as a necessary means of exercising other powers expressly given. But it is hard to understand, when a power is expressly given, which does not come up to a required height, how this express power can be enlarged as an incident to some other express power.

The power to "coin money means, I take it, both by the true construction and as interpreted by practice, (1.) to strike off metallic medals (coin), and (2) to make those medals legal tender (money). I cannot, therefore, see how the right to make paper legal tender can be claimed for Congress when the Constitution virtually contains the words "Congress shall have power to make metals legal tender."

It is to be remembered that those who deny the power have only to maintain that it is not granted by implication. They are not called on to find a constitutional prohibition.

It is perfectly consistent with this argument that the power to issue bills not legal tender may be claimed under the borrowing clause, and of this opinion was Mr. Madison. Mad. Pap. Aug. 16, 1787. Vol. 3, p. 1346, note. H.

SUPREME COURT. After the Legal Tender Act, perhaps the most important decision made at Washington during this term, is the case of The Grapeshot. In this case, it was held that the President had power during the war to establish the provisional court of Louisiana in the city of New Orleans, and that Congress had the right to provide for the transfer of cases pending in that court at the close of the war, to the United States Circuit Court. Another, and a now more directly important practical, matter determined in this case is the substantial

explaining away of the unfortunate language of the court in Pratt v. Reed, 19 How. 359, which has worked such confusion in the law of maritime liens. That law is now settled back on its ancient foundations, and, in the absence of evidence to the contrary, where necessary supplies are furnished on the credit of a vessel, the presumption is that there was a necessity for the credit.

The court sums up the doctrine of "maritime hypothecation" in these five propositions, the last it adopts with some hesitation: -

1. Liens for repairs and supplies, whether implied or express, can be enforced in admiralty only upon proof made by the creditor that the repairs or supplies were necessary, or believed, upon due inquiry and credible representation, to be necessary.

2. Where proof is made of necessity for the repairs or supplies, or for funds raised to pay for them by the master, and of credit given to the ship, a presumption will arise, conclusive, in the absence of evidence to the contrary, of necessity for credit.

3. Necessity for repairs and supplies is proved where such circumstances of exigency are shown as would induce a prudent owner, if present, to order them or to provide funds for the cost of them on the security of the ship.

4. The ordering by the master of supplies or repairs upon the credit of the ship is sufficient proof of such necessity to support an implied hypothecation in favor of the material-man, or of the ordinary lender of money, to meet the wants of the ship, who acts in good faith.

5. To support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required, and, if the fact of necessity be left unproved evidence is also required of due inquiry and of reasonable grounds of belief that the necessity was real and exigent.

CALIFORNIA.

UNITED STATES DISTRICT COURT.
The Cyane.

HOFFMAN, J.-The facts in this case are not disputed, and the question presented to the court for decision is whether a seaman, who had shipped for a voyage from this port to Ounalaska, Alaska, and back, had a right to refuse to perform his ordinary duty on the ground that such duty was required of him on a Sunday, notwithstanding that the day in question was not, by the custom and usage of the port of Ounalaska, where the vessel lay, observed as a Sunday or holiday. It is not disputed, that, according to our calendar, the day was Sunday; but, owing to some peculiarity in the calendar in use in the late Russian Possessions on this continent, the day previous had been observed as a Sunday or holiday.

The duty required of the seamen was to assist in discharging the cargo, and the contract of the libellant was in the ordinary form of shipping articles. These articles contain no agreement for exemption from labor on the part of the crew on Sunday or any other sacred day. But it is admitted that, by usage and custom, no labor is on that day exacted of seamen, except such as is necessary for the navigation and care of the ship, or such as may be rendered necessary by extraordinary circumstances. Admitting, therefore, that this usage enters into and forms a part of the contract, it is nevertheless apparent that, from its very

nature, it can only give to the seaman the right to exemption from duty subject to the discretion of the master. It is for the latter to determine what work is necessary, and when the labor of the crew or of any number of it is required.

In cases of emergency, growing out of disaster or danger to the ship, the necessity for the labor of the crew may be apparent to all. But there are many occasions when the necessity or expediency of requiring their services may depend on circumstances known only to the master, and as to the force of which he alone can judge. The right of a seaman to rest on Sunday from the labors of the week cannot be more sacred than his right to rest during a portion of each twenty-four hours from the labors of the day; and yet the master's right to call all hands on deck, and, if in his judgment necessary, to deprive the crew of their watch below, cannot be questioned. In all cases, obedience is the first duty of the seaman. And it is only when the command is unlawful, or the duty exacted is plainly unreasonable and unnecessary, that a refusal to obey can be for a moment countenanced.

In the case of Ulary v. The Washington, Crabbe, 204, Judge Hopkinson says, "The libellant contends that he was not bound to work on Sunday. There is no law for this position. The nature of the service requires that the men should do so, and they must not be allowed to set themselves up as judges, and refuse to do their duty on such excuses."

In the case at bar, the order of the master seems to have been reasonable and proper. By the usage of the port where the vessel lay this was a secular day, devoted to ordinary business and labor; and of this the seaman may be considered to have had notice when he entered into this contract. If by the law, or perhaps by the established usage of the port, labor had been prohibited on that day, he would have been entitled to the exemption. But certainly the master cannot be bound to accord to him all the privileges secured by the law or the usages of the port where the vessel is lying, and also all those allowed by the law and usage of the port from which he sailed. The contract for the seaman's service contemplates its performance in port at the port of Ounalaska, and as to that port it must be performed according to the law and usage there prevailing.

It does not distinctly appear at the hearing whether the previous day observed at Ounalaska as a holiday had been allowed to the seamen as a day of rest. It probably was, for the master would be unlikely to offend the sentiments of the inhabitants by a desecration of the day; and when all business and labor on. shore were suspended, the discharge of the cargo by the crew would almost necessarily be interrupted. The motives of the libellant in refusing to work are not shown; it does not appear that he was a Christian, and therefore his refusal cannot be attributed to scruples of conscience. He has chosen to stand on the purely legal ground that no work could be required of him on Sunday, except such as was already indispensable and necessary; and of this he constituted himself the judge.

My opinion is that the master had the right, under the circumstances, to require of him the performance of his duty.

I think the master had no right to expel him from the vessel. Certainly he had none to inflict that mode of punishment which is only allowable in extreme cases, and to impose in addition a forfeiture of wages already earned. I think,