Open main menu

Page:Harvard Law Review Volume 1.djvu/81

This page has been validated.
LEGAL TENDER.

THE question whether Congress has the power to make paper a good tender in payment of debts, and the question whether under any given circumstances it is wise or right that Congress should use it, are very different things. He who asserts the power may well enough deny the wisdom, the justice, or the morality of any particular instance of its exercise; recalling what Sir Matthew Hale said of the king’s prerogative regarding the coin: “It is true that the imbasing of money in point of allay hath not been very usually practised in England, and it would be a dishonor to the nation if it should . . . but surely if we respect the right of the thing, it is within the king’s power to do it.”[1] The topic which it is now proposed to consider is the purely legal one of constitutional power.

Ⅰ.As regards the clauses of the Constitution relating to money, and as to the opinion of the framers of it about the emission of bills and making paper a legal tender.

The specifications of the power which is given to the Congress of the United States in the Constitution, relating to money, are two: power is given to borrow money and to coin money. Art. I., Sect. 8, clause 2, reads: [The Congress shall have power] “to borrow money on the credit of the United States.” In clause 5 the power is given “to coin money, regulate the value thereof, and of foreign coin, and fix the standards of weights and measures.” Provisions corresponding to these are found in Art. 9, Sects. 4 and 5, of the Articles of Confederation; and the language there used accounts in part for that of the Constitution. The clauses above quoted originally stood, in Pinckney’s Plan of a Federal Constitution,[2] as follows: “The Legislature of the United States shall have the power to borrow money and emit bills of credit; . . . to coin money, and regulate the value of all coins, and fix the standard of weights and measures.” The Plan was referred to a committee. In the draft of the Constitution reported by the committee of detail[3] on August 6, after more than two months, the first clause stood nearly as before, while the other one read thus: “to coin money, to regulate the value of foreign coin.”


  1. 1 Hale, P. C. 193.
  2. 5 Elliott’s Debates, 130.
  3. Ib. 378.