court of justice, as a bar to the penalty which the law has soberly affixed, in the discreet and deliberate action of the legislature. And here my learned friend furnishes me, by his reference to the grave instance of injury to the property, and the security, and the authority of the State of Virginia, which he has spoken of as "John Brown's raid," with a ready instance in which these great principles of public justice, the authority of government, and the sanction of human law were met, in the circumstances of the transaction, by a complete, and thorough, and remarkable reliance, for the motive, the support, the stimulus, the solace, against all the penalties which the law had decreed for such a crime, on this interior authority of conscience, and this supremacy of personal duty, according to the convictions of him who acts. The great State of Virginia administered its justice, and it found, as its principal victim, this most remarkable man, in regard to whom it was utterly impossible to impute anything like present or future, near or remote, personal interest or object of any kind: a man in regard to whom Governor Wise, of Virginia, said, in the very presence of the transaction of his trial, that he was the bravest, the sincerest, the truthfulest man that he ever knew. And now let us look at the question in the light in which our learned friend presents it: that John Brown, as matter of theoretical opinion of what he had a right to do under the Constitution and laws of his country, was justified upon the pure basis of conscientious duty to God; and let us see whether, before the tribunals of Virginia, as matter of fact or matter of law, or right or duty, any recognition was given to it. No. John Brown was not hung for his theoretical heresies, nor was he hung for his hallucinations of his judgment and the aberration of his wrong moral sense, if you so call it, instead of the interior light of conscience, as he regarded it. He was hung for attacking the sovereignty, the safety, the citizens, the property, and the people of Virginia. And when my learned friend talks about this question of hanging for political, moral or social heresy, and that you cannot thus coerce the moral power of the mind, he vainly seeks to beguile your judgment. When Ravaillac takes the life of good King Henry, of France, is it a justification that, in the interests of his faith, holy to him—of the religion he professed—he felt impelled thus to take the life of the monarch? When the assassin takes, at the door of the House of Commons, the life of the prime minister, Mr. Percival, because he thinks that the course of measures his administration proposes to carry out is dangerous to the

country, and falls a victim to violated laws, I ask, in the name of common sense and common fairness, are these executions to be called hanging for political or religious heresies? No. And shall it ever be said that sincere convictions on these theories of secession and of revolution are entitled to more respect than sincere convictions and opinions on the subject of human rights? Shall it be said that faith in Jefferson Davis is a greater protection from the penalty of the law than faith in God was to John Brown or Francis Ravaillac ?

Here Mr. Evarts showed that the exchange of flags of truce and capitulations did not constitute such a recognition of the enemy as justified rebellion or a violation of law. That what the government had done in this respect in the past, was no bar to future action. That it was the duty of the government to show that resort to war, as a means of redress, was error; that the remedy for all grievances, real or imaginary, is in the region of debate and opinion and equal representation. He then read a letter from Garibaldi, showing that the Italian patriot did not share the views of the defense in regard to the war, his sympathies being with the federal government. After quoting from Mr. Webster's speech, delivered on the centennial anniversary of the birthday of Washington, in 1832, in which he eulogized the establishment of our government as the greatest achievement in human affairs, he concluded as follows:

If, gentlemen, the eloquence of Mr. Webster, which thus enshrines the memory and the great life of Washington, calls us back to the glorious recollections of the revolution and the establishment of our government, does it not urge every man everywhere that his share in this great trust is to be performed now or never, and wherever his fidelity and his devotion to his country, its government and its spirit, shall place the responsibility upon him? It is not the fault of the government, of the learned district attorney, or of me, his humble associate, that this, your verdict, has been removed, by the course of this argument and by the course of this eloquence on the part of the prisoners, from the simple issue of the guilt or innocence of these men under the statute. It is not the action or the choice of the government, or of its counsel, that you have been drawn into higher considerations. It is not our fault that you have been invoked to give, on the undisputed facts of the case, a verdict which shall be a recognition of the power, the authority, and the right of the rebel government to infringe our laws, or partake in the infringement of them, to some form and And now, here is your duty, here your post of fidelity, not

extent.

1 For the reference to Garibaldi, see ante, p. 357; for the letter, see Appendix, p. 723.

against law, not against the least right under the law, but to sustain, by whatever sacrifice there may be of sentiment or of feeling, the law and the Constitution. I need not say to you, gentlemen, that if, on a state of facts which admits no diversity of opinion, with these opposite forces arrayed, as they now are, before youthe Constitution of the United States, the laws of the United States, the commission of this learned court, derived from the government of the United States, the venire and the impaneling of this jury, made under the laws and by the authority of the United States, on our side; met, on their side, by nothing, on behalf of the prisoners, but the commission, the power, the right, the authority of the rebel government, proceeding from Jefferson Davis-you are asked, by the law, or under the law, or against the law, in some form, to recognize this power, and thus to say that the folly and the weakness of a free government find here their last extravagant demonstration, then you are asked to say that the vigor, the judgment, the sense, and the duty of a jury, to confine themselves to their responsibility on the facts of the case, are worthless and yielding before impressions of a discursive and loose and general nature. Be sure of it, gentlemen, that, on what I suppose to be the facts concerning this particular transaction, a verdict of acquittal is nothing but a determination that our government and its authority. in the premises of this trial, for the purposes of your verdict, are met and overthrown by the protection thrown around the prisoners by the government of the Confederate States of America, actual or incipient. Let us hope that you will do what falls to your share in the post of protection in which you are placed, for the liberties of this nation and the hopes of mankind; for, in surrendering them, you will be forming a part of the record on the common grave of the fabric of this government, and of the hopes of the human race, where our flag shall droop, with every stripe polluted and every star erased, and the glorious legend of "liberty and Union, now and forever, one and inseparable," replaced by this mournful confession, "unworthy of freedom, our baseness has surrendered the liberties which we have neither the courage nor the virtue to love or defend."

Judge Nelson delivered the charge to the jury, on Wednesday afternoon, October 30, at the close of Mr. Evarts' address. They remained out all night, and, being unable to agree, were discharged by the court on the following day.

ARGUMENT OF JOHN K. PORTER,

ON THE CONSTITUTIONALITY OF LEGAL TENDER ACTS.METROPOLITAN BANK V. VAN DYCK.

[27 N. Y. 400.]

BEFORE THE COURT OF APPEALS OF THE STATE OF NEW YORK, AT ALBANY, JUNE 27th, 1863.

The Metropolitan Bank, the party plaintiff in this action, was a banking corporation, located and doing business in the city of New York, and organized under and by virtue of the laws of that State. By its charter, it was authorized to issue circulating notes to a fixed and limited amount, upon depositing with the bank department proper securities for the redemption and payment of its currency so issued. The statute further provided, in case, after lawful demand, default should be made in the payment of any of its notes in "lawful money of the United States," that the holder of such notes should cause the same to be protested; and the bank department was authorized, upon receiving notice of such protest, to institute proceedings as prescribed by the statute to enforce payment out of the securities deposited with him for that purpose, and, if need be,

to sell the same. On the 26th of March, 1863, one D. Valentine, being the owner and holder of a bill or note of the denomination of ten dollars, issued by the Metropolitan Bank, presented the same to the proper officer and demanded payment thereof in gold or silver coin of the United States, which was refused. The bank, however, tendered to Valentine, and offered to pay the note presented by him for redemption, with a note of the denomination of ten dollars, issued by the Secretary of the Treasury upon the credit of the United States, under and by virtue of an act of Congress, entitled "An act to authorize the issue of United States notes, and for the redemption or funding thereof, and for funding the floating debt of the United States," approved February 25th, 1862. The tender was refused. The note was duly protested, and notice of protest filed with the defendant, Henry H. Van Dyck, Superintendent of the Bank Department, as required by law. The defendant then notified the plaintiff, that the note which Valentine had presented for redemption must be paid within fifteen days in gold or silver coin, or, in default thereof, he would proceed to sell the securities deposited with him, and redeem said note according to the requirements of the

statute.

The plaintiff accordingly brought this action to restrain the defendant from taking any steps towards the sale of the stock or trust funds in his hands belonging to plaintiff, on the ground that the money tendered by it to Valentine, by way of redemption, was "lawful money of the United States," and that said tender was a valid and legal tender. The issue involved, therefore, was the validity of the act of February 25th, 1862. If Congress had no power to provide for the payment of the national debt, and to create a currency for that purpose upon the credit of the government, and to make such currency a legal tender in payment of all debts public and private, then the money tendered by the plaintiff in payment of its note was not "lawful money of the United States," and no legal tender had been made. The court below held, that Congress had power to pass the law creating a national currency, and giving it the quality of a legal tender in payment of all debts, and enjoined the defendant from instituting proceedings to sell plaintiff's securities. From that decision this appeal was taken.

The importance of the question presented was, at the critical period when it arose, beyond all calculation, and the result of the decision will be of vital consequence as long as the republic shall endure. The government was engaged in suppressing the most formidable rebellion known to history; a struggle which has been justly regarded as the greatest of modern wars. Congress was consequently obliged to create a currency, and issue its bonds to provide means to maintain and support the fleets and armies enlisted to preserve its existence. If the courts should declare that Congress had no constitutional power to do this, or to make its notes a legal tender for private as well as public debts, the effect of the decision would render its currency and bonds valueless, and thus deprive the government of the only means for protecting itself from utter dissolution. It was an issue, therefore, which concerned the very existence of the nationwhether it could exercise the right of self-preservation under the Constitution. It has been frequently claimed that, independent of express statutory authority, the right of existence is inherent in every sovereignty, outweighing all considera tions, and rising above all constitutional limitations. Philosophical and historical writers in different ages, and at different periods, have agreed that self-pres