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Page:Harvard Law Review Volume 1.djvu/82

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There was now no difficulty in regard to the clause about coining money; it passed without opposition, taking on at some later stage the shape in which it now stands, namely, that which is first quoted above. As regards the other clause, that part of it was stricken out which authorized Congress to emit bills, and it was left thus: “to borrow money on the credit of the United States.” In the articles of Confederation it had been: “to borrow money or emit bills on the credit of the United States;” and now, in the final result, they merely struck out, “or emit bills.”

At no time did any plan or draft of the Constitution contain anything which in express terms touched the making of bills by Congress a legal tender; nothing was said for or against that power. That omission was not, of course, because the subject was unfamiliar; it was, in fact, very much brought to the attention of the framers of the Constitution, and so were all the possibilities of legislative action about it. It was suggested by Madison that this power of emitting bills of credit should not be struck out, but that the making of such bills a legal tender should be prohibited. It was suggested by others that if there were merely a striking out and no prohibition, the power both to emit bills and to make them a legal tender would exist in Congress. But still no prohibition was inserted, and there was simply a striking out of the express authority to emit bills.[1]

Now, as regards the States. In Pinckney’s Plan, Art. XI.,[2] they were forbidden, “without the consent of the Legislature of the United States. . . . [to] emit bills of credit, [or] make anything but gold, silver, or copper a tender in payment of debts.” By the report of the committee of detail[3] they were forbidden absolutely to coin money; and the previous prohibition, “without the consent of the Legislature of the United States,” was continued as to the clause about emitting bills of credit, or making anything but specie a tender in payment of debts. This condition was afterwards stricken out,[4] and the whole provision on the subject as regards the States, finally took its present form of an absolute prohibition.[5]


  1. Ib. 434.
  2. Ib. 131.
  3. Ib. 381.
  4. Ib. 484, 485.
  5. Const. U. S., Art. I., Sect. 10, clause 1: “No State shall . . . coin money, emit bills of credit, make anything but gold and sllver coin a tender in payment of debts.” What was meant by emitting bills of credit was afterwards a matter of controversy in the courts. The definition of “bills of credit” by the Supreme Court (by the majority, per Marshall, C. J.) in Craig v. Mo., 4 Pet. 432 (1830), included any paper