James Bradley Thayer

“ The States are expressly prohibited from making anything but gold and silver a tender, in payment of debts, and although no such express prohibition is applied to Congress, yet as Congress has no power granted to it, in this respect, but to coin money and to 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. ”

“ Congress, he thought, would not have the power unless it were expressed. Though he had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. He observed that the late war could not have been carried on, had such a prohibition existed.—Mr. Gorham. The power, as far as it will be necessary or safe, is involved in that of borrowing.—Mr. Mercer was a friend to paper money, though, in the present state and temper of America, he should neither propose nor approve of such a measure. ”

“ As the power to coin money, and so to furnish a medium of exchange does not exclude an implied power to furnish another medium of exchange, a paper currency, “paper money,”—so neither in its expression nor its implication does it exclude the implied power to make this other medium of exchange a legal tender.
But it may be thought that I have gone too far in saying, as regards metallic money, that the terms money and legal tender are not convertible terms. It is not forgotten that distinguished persons have held the contrary opinion. ”

“ But if we understand by currency the legal money of the country, and that which constitutes a lawful tender for debts, and is the statute measure of value, then, undoubtedly, nothing is included but gold and silver. Most unquestionably there is no legal tender, and there can be no legal tender, in this country, under the authority of this government or any other, but gold and silver, either the coinage of our own mints, or foreign coins, at rates regulated by Congress. ”

“ To make the currency do the usual office of money more effectually and fully, is legitimate regulation of the currency. To make it do the special office of theatre tickets or railroad tickets is superadding to its quality as currency, as money, or its equivalent, another and foreign quality. ”

“ 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. ”

“ But it is, in fact, borrowing money on a promise to pay; and in the case of the government it is borrowing upon a kind of promise to pay, which is a part of the medium of exchange, and of that which is, in the full legal sense, money.
We perceive, then, a great difference between private borrowing and public borrowing. [63] When a nation borrows it may, as we see, borrow with its currency; and if its currency be made a legal tender it may borrow with that. ”

“ If the implied power be otherwise plain it is difficult to see why it should be treated any differently as regards the exercise of it, or its relation to the spirit of the Constitution, from any other power. ”

“ In law, also, it is to be admitted that, generally, in the payment of debts and obligations, and on the side of penal law, as in a statute relating to the embezzlement of money, only what is a legal tender is money. [33] But it must also be remembered that the Constitution, in giving to Congress the power to coin money, is not, just then, concerned with the technicalities of law or political economy ”

“ I.⁠As regards the clauses of the Constitution relating to money, and as to the opinion of the framers of it about the emission of bills and making paper a legal tender.
The specifications of the power which is given to the Congress of the United States in the Constitution, relating to money, are two: power is given to borrow money and to coin money. Art. ”

“ Wellington, Pet’r., 16 Pick., at p. 95, per Shaw, C.J.; People v. Sup. of Orange, 17 N. Y., at p. 241, per Harris, J.; Cooley Const. Lim. 183. See Von Holst Const. Law of U.S. 64, 65 (Chicago, 1887) . ”