Page:Harvard Law Review Volume 1.djvu/93

 should the implied power of making coined money a legal tender exclude an implied power of making “paper money” a legal tender? 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. Mill has said: “It seems to me to be an essential part of the idea of money that it be legal tender.” A distinguished French writer, Say, has remarked: “The copper coin and that of base metal are not, strictly speaking, money; for debts cannot be legally tendered in this coin, except such fractional sums as are too minute to be paid in gold or silver.” Many other persons have held this as a doctrine of political economy, although it is a view which is by no means universally accepted. 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. 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; it is disposing of one of the “jura majestatis” in brief and general terms, in phrases which are the language of statesmen. The terms used in this place import the manufacture of metallic coin, and do not comprehend the preparation of paper. But to say that they import no other metallic coin than that which is made a legal tender seems to be clearly an error. Even in strict law the term money sometimes covers things other than legal tender, as in the case of a gift of “money” in a will, which includes bank notes. Of bank notes, also, Lord Mansfield said, in 1758, in Miller v. Race, in an action of trover