Open main menu

Page:Harvard Law Review Volume 1.djvu/90

This page has been validated.

resulting from the fact that Congress, while not expressly prohibited, like the States, yet has no grant of power “in this respect, but to coin money and regulate the value of foreign coins.”[1] If this ground be thought, as I venture to think it, not a very strong one, it must be remembered that Mr. Webster was not, just then, concerned in any careful or affirmative discussion of this topic; he was only making a passing concession to his opponents. His line of thought was this: “You talk of ‘paper money’ as unconstitutional; and of gold and silver as the only ‘constitutional currency.’ What is meant by ‘constitutional currency?’ If you mean that nothing but coin can be a legal tender, I agree; but if you mean that it is not constitutional to have a paper currency at all, I deny it.” That is to say, he conceded a point, in passing, without at all undertaking to weigh carefully his language or his reasons as regards a matter upon which he assumes that all whom he is addressing think alike. Still he does give a reason; (a) there can be no legal tender but coin, as resulting from the action of a State, because the States are expressly prohibited from making anything but gold and silver a tender in payment of debts; (b) there can be no legal tender but coin resulting from the action of Congress, because, though not expressly prohibited, “as Congress has no power granted to it in this respect, but to coin money and regulate the value of foreign coins, it clearly has no power to substitute paper, or anything else, for coin, as a tender in payment of debts and in discharge of contracts.”

Now, as regards these statements of Mr. Webster, there is, in the first place, no difficulty in assenting to what he says about the power of the States. But as regards Congress, his conclusion is by no means so obvious. When it is said that Congress has no other power granted to it, in respect to legal tender, than that which is mentioned, if it is meant that no such power is granted by implication elsewhere, there is a begging of the question which we are discussing, and of which more will be said later on. If it is meant that there is no other express grant of the power, the statement is objectionable in its assumption that there is here any express grant of power to establish a legal tender; although it is to be admitted that there is not any express grant of it elsewhere.


  1. Mr. Webster is, of course, a little inaccurate here. Congress may also “regulate the value” of its own coin. And it is an error to say that Congress can make only gold and silver a tender.