McGinty Brian. Lincoln and the Court

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conclusion he had reached while he was secretary of the treasury. Then he had

declared legal tender a “necessity” and said that he supported it “earnestly.”

Now he said that it was inconsistent with the “spirit of the Constitution.” How

could he explain this apparent contradiction? Decisions were made during the

war, he said, “under the inﬂuence of apprehensions for the safety of the Repub-

lic.” Then, the time “was not favorable to considerate reﬂection upon the con-

stitutional limits of legislative or executive authority.” Power was assumed

“from patriotic motives.” Now, “under the inﬂuence of the calmer time,” sup-

porters of legal tender had reconsidered their opinions and changed their con-

clusions. The new conclusions, Chase wrote, “seem to us to be fully sanctioned

by the letter and spirit of the Constitution.”

Miller’s dissent (which was joined by Swayne and Davis) pointed out that

the power to control money was speciﬁcally forbidden by the Constitution to

the states, for Article I, Section 10, provides: “No state shall...coin money;

emit bills of credit; make anything but gold and silver coin a tender in payment

of debts.” No such prohibition is placed on the power of Congress. Miller ac-

knowledged that some matters are expressly forbidden to Congress, “but nei-

ther this of legal tender, nor of the power to emit bills of credit, or to impair the

obligation of contracts, is among them.”

Miller referred to Marshall’s state-

ment in McCulloch that the Constitution’s “necessary and proper” clause was

inserted to give Congress some ﬂexibility in choosing the means to exercise its

enumerated powers. Marshall had said that the Constitution was “intended to

endure for ages to come” and “to be adapted to various crises of human affairs.”

If Congress’s enumerated powers were rigidly circumscribed, it would be with-

out power to meet “exigencies which, if foreseen at all, must have been but

dimly, and which can best be provided for as they occur.”

Miller thought that

Marshall’s words were “almost prophetic,” for without the ﬂexibility they al-

lowed, Congress could not have carried on the great war to save the Union; it

could not have raised the money necessary to fund the war; and the whole ef-

fort would have been rendered “nugatory.” Congress would have been stripped

of the power, in Miller’s words, “to avail itself of experience, to exercise its rea-

son, and to accommodate its legislation to circumstances, by the use of the

most appropriate means of supporting the government in the crisis of its fate.”

Miller disagreed with Chase’s argument that the Legal Tender Act, by im-

pairing the obligation of a contract made before its effective date, was inconsis-

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tent with the “spirit of the Constitution.” He pointed out that the Constitu-

tion clearly authorized Congress to pass bankruptcy laws. Article I, Section 8,

gives Congress the power “to establish...uniform laws on the subject of bank-

ruptcies throughout the United States.” Congress had up until that time passed

three bankruptcy laws, and they all applied to debts contracted before their ef-

fective dates. Miller asked how it could be in accordance with the “spirit of the

Constitution” to directly destroy a creditor’s rights to beneﬁt an individual

debtor and in violation of the same “spirit” to remotely impair the value of

money “for the safety of the nation.”

The “spirit of the Constitution” seemed

altogether too abstract and intangible a concept for Miller. “It would authorize

this court to enforce theoretical views of the genius of the government, or

vague notions of the spirit of the Constitution and of abstract justice, by de-

claring void laws which did not square with those views.” It would, Miller said,

substitute the justices’ own “ideas of policy for judicial construction, an unde-

ﬁned code of ethics for the Constitution, and a court of justice for the National

legislature.”

On the same day that the decision in Hepburn was announced, President

Grant nominated two new justices to the Supreme Court. William Strong was

a sixty-one-year-old lawyer and former United States congressman from Phila-

delphia who had served eleven years on the Pennsylvania Supreme Court. In

that capacity, he had made important decisions that favored the government’s

war efforts, including one that sustained the conscription law and another that

upheld the Legal Tender Act.

Strong was a highly respected lawyer who had

frequently been mentioned as a candidate for the Supreme Court. The other

nominee, Joseph P. Bradley, was a lawyer from Newark, New Jersey, who spe-

cialized in patent, corporate, and commercial law and had achieved a reputa-

tion for his representation of the powerful Camden and Amboy Railroad.

Bradley was a week shy of his ﬁfty-seventh birthday when Grant sent his nomi-

nation to the Senate. Strong’s nomination was conﬁrmed on February 18 and

Bradley’s a month later.

Soon after the new justices took their seats, the Court was confronted with

several cases that mixed legal tender issues with other questions. These were

cases in which creditors complained that they were entitled to additional pay-

ments because the market value of legal tender notes was less than that of gold

coin. Miller, Swayne, Davis, and the new justices felt it proper to reargue the

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central question of the constitutionality of legal tender. Chase believed that

the question was settled. But Hepburn had decided only that legal tender was

unconstitutional as applied to preexisting debts, leaving open the question as

to debts incurred after the effective date of the act. Miller and his supporters

believed that the entire issue should be reargued, not only because Hepburn

had only partially settled it, but also because Hepburn had been decided by an

incomplete court and, even more important, because the whole question was of

“immense importance to the government, to individuals and to the public.”

The justices noted that the legal profession still had doubts on the question. “If

it is ever to be reconsidered,” Miller wrote at the end of April, “a thing which

we deem inevitable, the true interests of all demands that it be done at the ear-

liest practicable moment.”

Attorneys whose clients had beneﬁted from the

Hepburn ruling naturally argued that the whole matter was settled, while their

opponents disagreed. Chase tried at every turn to side with the former, but

Miller and his supporters were ﬁnally able to force the issue. Miller later wrote

that there had been “a desperate struggle in the secret conference of the court

for three weeks” and that Chief Justice Chase had “resorted to all the strata-

gems of the lowest political trickery” to prevent the legal tender issue from be-

ing reargued.

on may 1, 1871, the Supreme Court announced its decisions in Knox v.

Lee and Parker v. Davis, two cases that had been combined for argument and

were collectively referred to as the Legal Tender Cases. Opinions in the cases

were delivered on January 15, 1872.

In Knox v. Lee, Mrs. Lee (a loyal citizen of Pennsylvania) owned a ﬂock of

sheep in Texas. Confederate authorities conﬁscated the sheep in March 1863

and sold them to a man named Knox. After the war, Mrs. Lee brought suit

against Knox for the value of the sheep, claiming that she was entitled to the

value in gold coin and not in legal tender notes. Knox argued that, since U.S.

Treasury notes were legal tender in 1863, Mrs. Lee was not entitled to any-

thing else.

In Parker v. Davis, a man named Parker had agreed some time before the

effective date of the Legal Tender Act to sell a parcel of land in Massachusetts

to another man named Davis. When Parker failed to convey the land, Davis

sued him for speciﬁc performance of the contract. In 1867, the Massachusetts

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court ordered Davis to pay the agreed price into court and Parker to execute a

deed conveying title to Davis. Davis paid the money in legal tender notes and

Parker objected, arguing that he was entitled to payment in gold coin.

These Legal Tender Cases raised issues as to the constitutionality of the Le-

gal Tender Act as it applied to debts incurred both before and after its effective

date. It was clear that Mrs. Lee’s sheep were taken from her in 1863, after the

act became effective, and although Davis’s promise to pay Parker for his land

was made before the effective date, the court order requiring him to pay the

speciﬁed sum into court was made thereafter.

Justice Strong delivered the majority opinion, which was joined in by

Swayne, Miller, and Davis. Justice Bradley delivered his own opinion, agreeing

with and supplementing Strong’s. Strong repeated many of the same arguments

made in Justice Miller’s dissent in Hepburn. He opened by describing the

consequences that were likely to ﬂow from the Court’s decisions in these cases,

saying:

They will affect the entire business of the country, and take hold of

the possible continued existence of the government. If it be held by

this court that Congress has no constitutional power, under any cir-

cumstances, or in any emergency, to make treasury notes a legal ten-

der for the payment of all debts (a power confessedly possessed by

every independent sovereignty other than the United States), the

government is without those means of self-preservation which, all

must admit, may, in certain contingencies, become indispensable....

It is also clear that if we hold the acts invalid as applicable to debts in-

curred, or transactions which have taken place since their enactment,

our decision must cause, throughout the country, great business de-

rangement, widespread distress, and the rankest injustice.

Strong continued:

It is not indispensable to the existence of any power claimed for the

Federal government that it can be found speciﬁed in the words of the

Constitution, or clearly and directly traceable to some one of the

speciﬁed powers. Its existence may be deduced fairly from more than

one of the substantive powers expressly deﬁned, or from them all com-

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bined. It is allowable to group together any number of them and infer

from them all that the power claimed has been conferred.

Strong carefully analyzed Chase’s argument that legal tender impaired “the

obligation of contracts” and denied “due process” and thus was inconsistent

with “the spirit of the Constitution,” and he rejected it. His opinion was care-

fully reasoned and powerfully stated. And it concluded with a speciﬁc state-

ment overruling Hepburn v. Griswold and questioning the circumstances under

which that case was decided:

That case was decided by a divided court, and by a court having a less

number of judges than the law then in existence provided this court

shall have. These cases have been heard before a full court, and they

have received our most careful consideration....Wehave been in

the habit of treating cases involving a consideration of constitutional

power differently from those which concern merely private right. We

are not accustomed to hear them in the absence of a full court, if it

can be avoided. Even in cases involving only private rights, if con-

vinced we had made a mistake, we would hear another argument and

correct our error. And it is no unprecedented thing in courts of last re-

sort, both in this country and in England, to overrule decisions previ-

ously made. We agree this should not be done inconsiderately, but in a

case of such far-reaching consequences as the present, thoroughly

convinced as we are that Congress has not transgressed its powers, we

regard it as our duty so to decide and to afﬁrm both these judgments.

Chase’s dissent was joined in by Justices Nelson, Clifford, and Field. Thus,

by a vote of ﬁve to four, legal tender was sustained.

Not surprisingly, the Court’s handling of the legal tender issue provoked

heated comment. Chase’s conclusion that the Legal Tender Act was unconsti-

tutional was the most controversial aspect of the whole episode, for it repudi-

ated his most important wartime policy. Lincoln had appointed him chief

justice at least in part because he believed that Chase would sustain the gov-

ernment’s position on legal tender, and in the end he did not. While the armies

were in the ﬁeld, he had endorsed the issue of greenbacks, but as chief justice

he concluded that they were illegal. The Washington Chronicle noted that in

1862 Chase had endorsed the legal tender law as “appropriate” and “adapted”

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to giving effect to the government’s war power. “To say now that the same

clause was unconstitutional,” the Chronicle continued, “is to say that, in the

opinion of the Chief Justice, the Constitution was so ingeniously framed as to

tie the hands of the people whose liberties it was intended to secure and pro-

hibit the Government from doing the thing most obviously essential to its own

preservation.”

Harper’s Weekly said that the Court had “overstepped the just

line of its authority and attempted to restrict Congress in this matter, when the

framers of the Constitution decided to leave them free of such restrictions.”

And the Nation argued that the complicated questions of how to raise armies in

a modern industrial community and “how to get money to support them with-

out plunging business into confusion and disheartening the people” were best

left to Congress and not the Supreme Court. “There is no way to submit them

to a court,” the Nation added; “a court which was competent to pass on them

would no longer be a court.”

Chase, of course, had his defenders. One of the strongest was Justice Field,

who saw the chief justice’s inconsistency on the legal tender issue as a strength

rather than a weakness. His shifts on the great constitutional question, in

Field’s judgment, represented “intellectual integrity.” Chase “preferred to be

the honest judge rather than the consistent statesman,” Field said.

(Chase’s

judgment on legal tender was, of course, identical to Field’s.)

In years to come, Chase’s and Field’s decision on the legal tender issue did

not prevail. It was the judgment of Miller and Strong and Bradley that came to

be the settled law of the United States. The Court’s decision in the Legal Ten-

der Cases upholding the constitutionality of legal tender was reafﬁrmed in 1884

in Julliard v. Greenman, this time by a vote of eight to one (only Justice Field

remained to dissent).

Whether or not legal tender was consistent with “the spirit of the Consti-

tution,” later generations of Americans could not seriously doubt that their

government had the same power to issue paper money and compel its accep-

tance in ﬁnancial markets that the governments of sovereign nations around

the world exercised on a routine basis. In Hepburn, Chase took a stand against

legal tender. But he was overruled by the tide of history.

if chase’s decision in Hepburn v. Griswold was widely criticized, the same

could not be said of his decision in another case that excited passions all over

the country and posed an even more critical question. Lincoln had consis-

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tently maintained, both before and during the war, that the Union had to be

defended against its enemies; that it could not be rent asunder by the unilat-

eral action of any state or group of states, or by any ordinance or ordinances

of secession. In his First Inaugural Address, the president stated his position

as clearly and forcefully as a lawyer might have stated it in a Supreme Court

argument:

I hold, that in contemplation of universal law, and of the Constitu-

tion, the Union of these States is perpetual. Perpetuity is implied, if

not expressed, in the fundamental law of all national governments. It

is safe to assert that no government proper, ever had a provision in its

organic law for its own termination. Continue to execute all the ex-

press provisions of our national Constitution, and the Union will en-

dure forever—it being impossible to destroy it, except by some action

not provided for in the instrument itself.

Lincoln was addressing his remarks to a great crowd assembled to hear him

take his oath of ofﬁce as president—a political audience gathered before the

national Capitol on the eve of a war that would test the survival of the nation

he had been elected to lead. Yet he spoke like a lawyer addressing a jury, or

seeking to persuade a panel of judges:

The Union is much older than the Constitution. It was formed in

fact, by the Articles of Association in 1774. It was matured and con-

tinued by the Declaration of Independence in 1776. It was further ma-

tured and the faith of all the then thirteen States expressly plighted

and engaged that it should be perpetual, by the Articles of Confedera-

tion in 1778. And ﬁnally, in 1787, one of the declared objects for or-

daining and establishing the Constitution, was “to form a more perfect

Union.”

But if destruction of the Union, by one, or by a part only, of the

States, be lawfully possible, the Union is less perfect than before the

Constitution, having lost the vital element of perpetuity.

It follows from these views that no State, upon its own mere mo-

tion, can lawfully get out of the Union,—that resolves and ordinances

to that effect are legally void; and that acts of violence, within any

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State or States, against the authority of the United States, are insur-

rectionary or revolutionary, according to circumstances.

I therefore consider that, in view of the Constitution and the laws,

the Union is unbroken; and to the extent of my ability, I shall take

care, as the Constitution itself expressly enjoins upon me, that the

laws of the Union be faithfully executed in all the States. Doing this I

deem to be only a simple duty on my part; and I shall perform it, so far

as practicable, unless my rightful masters, the American people, shall

withhold the requisite means, or in some authoritative manner, direct

the contrary.

In 1867, the State of Texas ﬁled an original suit in the United States Su-

preme Court against George W. White and John Chiles to recover 135 bonds

that Texas owned at the beginning of the war but that the secessionist govern-

ment of the state transferred to White and Chiles in January of 1865. The

bonds, each with a face value of $1,000 and by their terms payable to the

bearer, were originally issued to Texas by the United States in settlement of a

disputed boundary claim. Most had been paid before 1860, but some remained

in the state treasury after Texas joined the Confederacy in 1861. After the re-

bel forces in Texas were disbanded in May 1865, Texas adopted a new constitu-

tion and elected a new governor, who now sought to recover the bonds (or

their value) from White and Chiles. The theory of the suit was that the rebel

government of the state had wrongfully appropriated the bonds during the war,

transferring them without any authority to do so. The state asked for an in-

junction restraining White and Chiles from collecting any payments on the

bonds from the federal government, and compelling them to surrender the

bonds to the state.

In their defense, White and Chiles argued that the State of Texas had no

right to maintain a suit in the Supreme Court because it had seceded in 1861

and, by that action, surrendered its rights as one of the states of the Union. It

was conceded that, if Texas had retained its status as a state at the time it ﬁled

its suit, the Court had jurisdiction to hear it, for Article III, Section 2 provides

that “in all cases...inwhich a state shall be party, the Supreme Court shall

have original jurisdiction.” If Texas was no longer a state, however, the Court

had no jurisdiction.

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Chase began his opinion in Texas v. White by acknowledging the impor-

tance of the issue the Court was asked to decide. “We are very sensible of the

magnitude and importance of this question,” he wrote, “of the interest it ex-

cites, and of the difﬁculty, not to say impossibility, of so disposing of it as to sat-

isfy the conﬂicting judgments of men equally enlightened, equally upright, and

equally patriotic.” He began by discussing the nature of a “state.” As the word

was used in the Constitution, he deemed it to be “a people or political commu-

nity, as distinguished from a government.” It was in this sense, he said, that the

word was used in Article IV, Section 4, of the Constitution: “The United

States shall guarantee to every state in this union a republican form of govern-

ment, and shall protect each of them against invasion.”

Chase traced the history of Texas from the time of its admission to the

Union in December 1845, and reviewed its experience with secession and the

Confederate government. He then asked: “Did Texas, in consequence of these

acts, cease to be a State? Or, if not, did the State cease to be a member of the

Union?” Under the Articles of Confederation, he said, “the Union was sol-

emnly declared to ‘be perpetual.’” And when the Articles were found to be in-

adequate to the country’s needs, “the Constitution was ordained ‘to form a

more perfect union.’” Echoing Lincoln, Chase said: “It is difﬁcult to convey the

idea of indissoluble unity more clearly than by these words. What can be indis-

soluble, if a perpetual Union, made more perfect, is not?”

But the states did not lose their individual existence after they became

part of the “more perfect Union.” They retained their own powers, their own

jurisdiction. He referred to the words of the Tenth Amendment: “The powers

not delegated to the United States by the Constitution, nor prohibited by it to

the states, are reserved to the states respectively, or to the people.”

He quoted from Lane County v. State of Oregon, decided during the same

term of the Court, in which he wrote that “the people of each State compose a

State, having its own government, and endowed with all the functions essen-

tial to separate and independent existence,” and that “without the States in

union, there could be no such political body as the United States.”

He con-

tinued: “Not only, therefore, can there be no loss of separate and independent

autonomy to the States, through their union under the Constitution, but it

may be not unreasonably said that the preservation of the States, and the

maintenance of their governments, are as much within the design and care of

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the Constitution as the preservation of the Union and the maintenance of the

National government.” Chase then enunciated the most memorable phrase in

all of his constitutional jurisprudence: “The Constitution, in all its provisions,

looks to an indestructible Union, composed of indestructible States.”

It was an eminently quotable phrase, as clear as it was strong. Fairman has

called it “the most enduring thing Chase ever said.”

Simple yet forceful, it

was justiﬁcation enough for Chase’s decision in favor of the State of Texas,

holding that, despite all of the sorrows and tragedies of the war, the lost lives,

the maimed bodies, the shattered illusions and unfulﬁlled hopes, Texas was still

a sovereign state, a member of the “more perfect Union” formed in 1789, and

entitled to maintain its suit in the Supreme Court.

With Chase in the chief justice’s chair, the Supreme Court had afﬁrmed in

Texas v. White that the United States was an “indestructible Union.” With Lin-

coln in the White House, the nation had proved by its valor and tenacity that

the Union was “unbroken.” Despite their political rivalry, their conﬂicting am-

bitions, and the rupture in their working relationship, Lincoln and Chase came

in the end to the same conclusion. The nation was indestructible. The Union

was unbroken.

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