exist when the Constitution was established, may be employed as a means of making war, because it directly executes the power of carrying on war. It has all the requisite qualities and characteristics of the constitutional relation of means to an end, and whether it shall be employed is a mere matter of legislative discretion, or, as is said, it is a political question. Again, there is a power to collect and distribute revenue, and a power to borrow money. A national bank may be created by Congress, not because the creation of banks is an incident of general sovereignty, or because other governments create banks, but because a bank is an instrument that will directly execute the specific power to borrow money, or the specific power to collect and distribute revenue. It has all the qualities and capacities required for an exercise of one or more of the specific powers of the Constitution, and whether it shall be employed is a matter of legislative discretion. There is a power to establish post offices and post- roads. Whether the mails shall be carried by railway or by stage coach is a matter of legislative discretion and choice. Whether one or the other means is used the means chosen directly executes the power. But when you come to the employment of a means which, although not expressly prohibited in the Constitution, does not execute the power which it professes to execute-does not bear the requisite relation to that power, and is not in accord with both the letter and the spirit of the Constitution-it is not within the constitutional range of the legislative choice; and whether it is or is not within that range, is, as a final question, a question for the judicial power.

You will next ask how you are to know that a law, or any provision of a law, is not in accord with the letter or the spirit of the Constitution? The answer to this question is very simple. If there is any clause of the Constitution with which the law is inconsistent, with which it comes in contact, with which it is not in harmony, the law is not in accord with the letter of the Constitution. If the law is inconsistent with any of the great purposes for which the Constitution was established it does not accord with the spirit of the Constitution. Au apt illustration of this is the law which makes the promissory notes of the government a legal tender for private debts. There is a provision of the Constitution, a part of its letter, which confers on Congress the exclusive power of coining money and regulating its value. Those who deny the power of Congress to make paper money a legal tender for private debts can with good reason say that it is not reconcilable with the coinage power, because that power was established for the purpose of having a metallic standard and measure of values to operate everywhere throughout the country, whereas the value of paper money is a thing that no legislation can fix. All the laws that can be enacted cannot control the laws of trade, which are beyond the reach of legislation. If the condition of things at any time makes a piece of paper stamped as a dollar of less value than the gold standard, all the legislation in the world cannot make it of equal value. Again, the Constitution was established to secure justice, protect the rights of property, and give to our possessions a value that should be measured by the standard recognized throughout the commercial world. This is the spirit of the Constitution in relation to property and contracts, and those who deny the right of Congress to make government paper a legal tender in private contracts can with truth say that such a law is not in accord with the spirit of the Consti

tution, any more than it is with its letter. I repeat, it is not enough that a law which selects and professes to make a particular means an execution of some granted power of the government, is not expressly prohibited in the Constitution. It is not enough that it is a law which other governments make, whose powers of legislation and government are unlimited. It must be a law which this gov ernment can make, and therefore it must have in addition to the negative quality of not being prohibited in the Constitution, two other positive qualities, namely, that the means or instrumentalities which it professes to employ for executing a specific power of the Constitution must really execute it, and must also be consistent with both the letter and the spirit of the Constitution.

I use again as an illustration of this great rule the power to borrow money on the credit of the United States. Beyond all doubt Congress can adopt any legislation by which this power can be executed; that is to say, it can issue any forms of bonds, bills, or notes, to be given to any person from whom money is to be borrowed. But when to such paper obligations or acknowledgments of public debt there is added the quality of being a compulsory legal tender in the payment of debts between private individuals, you perceive that a question instantly arises whether Congress has power to compel me as a creditor to receive from my debtor, as full value for my debt, a promissory note of the government which the government has given to its creditor, from whom it has borrowed money in a transaction with which I had nothing to do, when that note may have a market value below the gold standard of value. The argument that the issue of such legal-tender paper currency will facilitate the borrowing of money by the government does not satisfy the measure of the legislative powers. It could be said of a law which made government notes compulsory payments for theatre tickets, or for supplies of provisions, that it would facilitate the borrowing of money by the government, for such a currency might be sought for by persons who had money to lend to the government, especially if they could get it at a round discount. This idea of facilitating the borrowing of money by the government by making its promissory notes a legal tender for private debts, no matter what may be their depreciation, does not fulfil the great rule of interpretation of the implied powers; first, because it does not execute the government's power of borrowing money, inasmuch as the transaction by which the government borrows money on its note is, to use a legal phrase, res inter alios acta, and you or I, as a private creditor or a private debtor, have nothing to do with it; secondly, because no human ingenuity can make it consistent with the letter or the spirit of the Constitution to compel me to discharge the full face of a debt, measured by the gold standard of value, for a promissory note of the government, which some one or more of its creditors has been content to take, and which, when tendered to me, may be of less value than the gold standard.

I have adverted to the true rule for the interpretation of the implied powers, and to the particular application of it to the legal-tender paper question, because this is beyond all comparison the most important question of our time. It matters not who is responsible for the original enactment or the re-enactment of this legal-tender provision. There are men in all parties who believe it to be constitutionally right, and men who believe it to be constitutionally wrong. What you are most concerned in is to see what is to become of property, of the

value of property, if Congress possesses the power that has been attributed to it, and that it has exercised The power that has been attributed to it, and that it has exercised, is not confined to any particular state of public affairs, because it is claimed that Congress can judge for itself when the public interest requires the issue of a legal-tender paper currency. So that it is only necessary at any time to elect a majority of members of both Houses of Congress, who for any reason whatever will favor the issue of any amount of such currency, and to have a president who agrees with them, and the man who counts his treasure by millious, and the day-laborer who buys his food with the currency which he may be compelled to take for his wages, or the farmer who must take that currency for his crops, are alike involved in an enormous confiscation, which results from displacing the gold standard and measure of values. It is useless to set up, as a barrier, any confidence that we may feel in the wisdom of our legislators. Their wisdom may lead them to do very unwise things. The only safe barrier is the wisdom that is embodied in the Constitution, and what that is is to be learned by a sound interpretation of the implied powers.

I could employ many other illustrations of the rule of interpretation, in which every one would concur, because there has been as yet no legislation which has entered into the politics of parties in the exercise of other constitutional powers. For example, take the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The laws which regulate the granting of patents and copyrights, and which provide a judicial remedy for infringements, are strictly in execution of the power to secure such property. But now suppose that Congress should enact a law limiting the price at which an inventor should be allowed to sell his invention or an author to sell his book. Would any one say that this would be anything but a usurpation? Would any one pretend that such a law bore any sort of relation to the constitutional power, or was in any sense an execution of it?

Take the power to regulate commerce among the several states. This is rather in the nature of a police power. It is a power to protect persons and property in transit from one state to another, to prevent obstructions to free intercourse by state legislation, to prevent state taxation of property or persons passing from one state to another, and to prevent the establishment by the states of any exclusive right of land or water carriage from one state to another. Laws of the United States which effect these objects are direct executions of the commercial power of the Federal Government. But now suppose that Congress should enact a law regulating the price to be charged by a vendor of merchandise dwelling in one state which is to be delivered to a vendee dwelling in another state, or a law prescribing what charge should be made for drawing a bill of exchange at New Orleans on New York, or a law limiting the freight or passage money to be charged by a carrier of merchandise or passengers from Chicago to Baltimore. Would either of these be a regulation of inter-state commerce? Would either of them be a law bearing the requisite relation to the commercial power? Would either of them execute that power?

Let me again advise you in studying such questions as these not to be deterred from the prosecution of truth by the outcry of "strict construction." It

will not help you in the least to inquire what is the proper phrase to apply to the method of interpretation, whether it should be called liberal or strict. Neither is it of any sort of consequence to you how this or that political party habitually construes the Constitution. I take it that you do not attend a lawschool for the purpose of learning what party you had better join. The study of the Constitution in which you are engaged will not be much promoted by consulting the "platforms" of parties or the professed sentiments of politicians. Go to other sources. Go to the judicial interpretations of the Constitution, from the beginning of the government to the present day, and extracting from them the sound rule which marks the boundaries of the federal powers, form your opinions and beliefs by that rule, and let others class you as strict or as liberal constructionists without the smallest care on your part about either phrase. You will find that what is called a liberal construction is sometimes right and sometimes wrong. You will find the same thing to be true of what is called a strict construction. The rule laid down by Chief-Justice Marshall and his brethren is broad enough to give this government all the scope that it ever ought to claim, and strict enough to prevent it from encroaching on the rights of states or of individuals. So long as it shall be observed this government cannot go wrong. When it is departed from this government will wander from its sphere, and although it may dazzle the beholders and excite their admiration and gratify their love of power, it will dislocate the whole political system that was established by our fathers and made consistent with liberty.

Let me give you one other counsel. Do not allow yourselves to be disturbed by that other outery which seeks to bring reproach or disfavor upon the doctrine of state-rights. The abnormal assertion of the right of secession from the Union, as a constitutional right of the states, which is now happily eliminated from their constitutional rights, should never prevent you from seeing that our political system does embrace and uphold state-rights which are as unquestionable and positive as are the rights and powers of this government. Consider for one moment what would have happened if, at the time of the establishment of this Constitution, all the elements of political power and government had been fused into one mass; had been concentred and concentrated into the hands of one central authority; that the people of the states had not interposed by the tenth amendment and declared that "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." Give the freest scope to your imaginations, and imagine, if you can, whether we could have carried our civilization from ocean to ocean if the sovereignties of the states had not been thus protected; whether the central power could have wisely and safely legislated for all the objects of social life if the state sovereignties had not been thus preserved; whether the absorption of all the powers of government into one central authority would not have ended in a despotism that would at last have been broken down by its own feebleness. The truth is that our mixed system of separate states and a limited central government, the states holding and exercising each for itself and within itself all the powers of government which it has not, through this Constitution, ceded to the United States, or which the Constitution has not expressly prohib ited, has enabled us to attain to a degree of civilization, of happiness and re

nown to which no other system could have conducted us. We can preserve this system only by taking care that each of the two kinds of government confines itself to the sphere marked out for it.

RECONSTRUCTION ACT OF CONGRESS.
MARCH 2, 1867.

AN ACT TO PROVIDE FOR THE MORE EFFICIENT GOVERNMENT OF THE

REBEL STATES.

Whereas no legal state governments or adequate protection for life or property now exists in the rebel states of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said states until loyal and republican state governments can be legally established; Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That said rebel states shall be divided into military districts and made subject to the military authority of the United States as hereinafter prescribed, and for that purpose Virginia shall constitute the first district; North Carolina and South Carolina the second district; Georgia, Alabama, and Florida the third district; Mississippi and Arkansas the fourth district; and Louisiana and Texas the fifth district.

SECTION 2. And be it further enacted, That it shall be the duty of the president to assign to the command of each of said districts an officer of the army, not below the rank of brigadier-general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned.

SECTION 3. And be it further enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of state authority with the exercise of military authority under this act shall be null and void.

SECTION 4. And be it further enacted, That all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district, and the laws and regulations for the government of the army shall not be affected by this act, except in so far as they conflict with its provisions: Provided, That