Open main menu

Page:Harvard Law Review Volume 1.djvu/96

This page has been validated.

“Legal Tender,” which give that quality to the coins of the United States; would all our coins, manufactured as they are under the provisions of the separate Title 38, cease to be money? It seems clear that they would not; and we must conclude that the term money, as used in the coinage clause of the Constitution, has that large and universal sense in which it is used in the reasonings of Aristotle,[1] of Adam Smith, and of Hamilton, viz.: that of a common metallic medium of exchange, “the common measure of all commerce.”[2]

And, finally, before leaving this argument from the supposed express power in the coinage clause, it may be added, as was said before, that this argument would equally apply if the Constitution had retained the express clause giving power “to emit bills on the credit of the United States.” It might still have been said that the implication of a power to give these bills the quality of legal tender was excluded by the coinage change. Yet the evident understanding of most of those who took part in the debates was, that if the power to emit bills was given it would carry with it the power to make them a tender, unless that power was expressly prohibited. There can be no doubt as to their understanding of that. The coinage change was not even alluded to. We have, then, in a way, the authority of these framers of the Constitution against the argument that the coinage clause excluded the implication of a power to make paper a legal tender.

Ⅲ.But there are other grounds on which the power now in question is denied. It is said that it is not necessary and proper to the end of carrying out any express power given to Congress, and that it is inconsistent with the letter and spirit of the Constitution. Of these arguments an article in the “American Law Review,”[3] understood to have been written by Mr. Holmes, whose general contention they are put forward to support, has expressed a slighting opinion. “The case of Hepburn v. Griswold,” he says, “(8 Wall., 603), was argued very much on the question whether the Legal Tender Act was a necessary and proper means of carrying out some of the powers expressly given to Con-


  1. 1 Nicom. Eth. Bk. Ⅴ 5. “For this purpose money was invented, and serves as a medium (μέσον, mean, or means) of exchange, for by it we can measure everything. . . Money is, indeed, subject to the same conditions as other things; its value is not always the same, but still it tends to be more constant than anything else,” etc. Translation by F. H. Peters. London, 1881.
  2. 1 Hale’s P. C. 184.
  3. Vol. Ⅶ. p. 146.