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Page:Harvard Law Review Volume 1.djvu/92

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word money in the coinage clause is limited to metallic money.[1] And Congress may do with it and about it, and may abstain wholly or in part from doing, what is ordinarily done by governments when they coin money; and so may make it a legal tender. But money is not necessarily a tender in discharge of contracts or debts; with us, foreign money is not;[2] some domestic money is not; for example, trade dollars,[3] silver coins, under the denomination of one dollar, for amounts over ten dollars,[4] copper and other minor coins, for amounts over twenty-five cents.[5] Undoubtedly the Legislature may make its coin a legal tender or not, as it pleases, and to such a partial extent, and with such qualifications as it pleases. In law, whatever is legal tender is money; but it is not true that whatever is money is legal tender. The clause of the Constitution, therefore, which provides for the coinage of money is not one which, by any necessary construction, says anything about legal tender. While, indeed, it is clear, having regard to the nature and ordinary use of coined money, to the ordinary powers of governments, to the control over this whole subject which is given to Congress by the Constitution, and to its silence as touching any restrictions regarding the power to make the money, when coined, a legal tender,—that Congress has full power to give or withhold this quality as regards its coined money, yet this power is inferential, and not express. The real argument, then, from the clauses relied upon by the learned persons above quoted, is not, as it is put; (a) Congress has an express power to make coin a legal tender; and so, (b) an implied power to make something else a legal tender is excluded. But it cannot be put higher than this: (a) Congress has an express power to coin money; (b) in that, is implied a power to make it a legal tender; and (c) this implied power excludes an implied power to make anything else a legal tender. That argument is not a strong one.

The power of Congress to make and put in circulation a paper currency, a paper medium of exchange, what Mr. Webster, in common with Adam Smith and Hamilton, and many another, calls “paper money,” is now established. The express power to coin money does not exclude the implication of that. Why, then,


  1. But see Mr. McMurtrie’s very able “Observations on Mr. George Bancroft’s Plea for the Constitution.”
  2. U. S. Rev. St. Sect. 3584.
  3. 1 Suppl. Rev. St. p. 254.
  4. Ib. p. 488.
  5. U. S. Rev. St. Sect. 3587.