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Page:Harvard Law Review Volume 1.djvu/94

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for a bank-note: “They . . . are treated as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind. . . . They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash.” Of the guinea, first coined in 1664 and not made a legal tender till 1717, Holt, C. J., said, in 1694, in St. Leiger v. Pope:[1] “Do you think that it is not high-treason to counterfeit guineas? A guinea is the current coin of the kingdom, and we are to take notice of it.” And then, above all, consider the usage of the time when the Constitution was made. Adam Smith, of whose great work on “The Wealth of Nations,” the first edition was published in 1776, and the last, of those during his lifetime, in 1786, remarks: “Originally, in all countries, I believe, a legal tender of payment could be made only in the coin of that metal which was peculiarly considered as the standard or measure of value. In England, gold was not considered as a legal tender for a long time after it was coined into money.”[2] I am not concerned with the precise accuracy of this statement in certain points of fact,[3] but only with its use of terms. Dr. Johnson, whose dictionary received his last corrections in the edition of 1773, defined money, with no reference to the idea of tender, simply and only as “metal, coined for the purposes of commerce.” Hamilton, in 1790, in his opinion given to Washington, on the constitutionality of the bill to incorporate a United States Bank,[4] said: “The Bank will be conducive to the creation of a medium of exchange between the States. . . . Money is the very hinge on which commerce turns. And this does not merely mean gold and silver; many other things have served the purpose of money with different degrees of utility. Paper has been extensively employed.”[5]

Observe, also, the sense of the term as used in our early statutes. In the first Coinage Act, of April 2, 1792,[6] in Sect. 9, ten coins, from eagles down to cents and half cents, are directed to be struck at the mint, and the value of them is regulated. Here appears to be the full exercise of the express power given in the Constitution,


  1. 5 Mod. at p. 7.
  2. Book Ⅰ. c. 5.
  3. See Coins of the Realm, by the Earl of Liverpool, 143.
  4. Lodge’s Works of Alexander Hamilton, Ⅲ. 213.
  5. It is needless to say that Hamilton was not here advocating making the paper a legal tender.
  6. 1 U. S. St. at Large, 246.