Collected Political Writings of James Otis. Otis James

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СКАЧАТЬ called Sterling Gold or Sterling Silver, for tho’ the denomination of sterling was at first applied to the coin of Silver, and to that coin which was the peny commonly called Sterlingus, yet use hath made it applicable not only to all kind of English coin of silver, but also to coin of gold, and this is called the standard of coin. In the case of money newly coined by the King’s authority in England, a proclamation is not absolutely necessary to the legitimation thereof or making it current. The true old Sterling standard, both of Gold and Silver, hath been the only standard of the English current money. I find rarely any proclamation for the setting of the rate of new coin, but only as before, when the denomination of what is in being is inhansed, or abated, or recalled; so that the indenture of the mint and common reputation is that which must try what is English money,” (H.P.C.). “That in regulating the current value of money among ourselves, we ought to have regard to the practice of neighbouring countries, is a mistake of so capital a nature, that it is of consequence to have it obliterated from the minds of men. And it is easy to demonstrate in regulating the current value of the coin of a kingdom, it is of no moment to regard the conduct of neighbouring states.”

      S.D.C. Postle. V. Coin.

      “It appertains to the King only to put a value to the coin, and to make a price of the quantity, and to put a print to it, the which being done, the coin is current for so much as the King has limited.” (Arg. Pl. C.) It was resolved as the King may make money of what matter and form he pleases, and establish it, that so he may change the money in substance and impression, and inhance or abate the value thereof, or utterly decry and annul it, so as to be only Bullion, at his pleasure. It was resolved, that it belongs solely to the King of England to make or coin money within his dominions, so that no other person can do it without special licence of the King; and if any presumes to do it of his own head, this is treason against the person of the King by the common law. Every piece of money ought to have its denomination or valuation, for which it shall be accepted, or paid, as for a peny, a groat, or a shilling, and all this ought to be done by authority and command of the Prince, and ought to be done by proclamation of the Prince. Davis.

      A tender may be made in foreign money, current by parliament or proclamation. Co. Lit.

      The King by his proclamation may make any coin lawful money of England; a fortiori he may by his proclamation only, establish the standard of monies coined by his authority, within his proper dominions.

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      Viner. Prerog.

      From the above authorities, I think it evident that the King’s coin, as well gold as silver, is lawful money of Great Britain, sterling standard money, and a legal tender, as is also even foreign gold at such a rate as the King by his prerogative alone a fortiori, at such rates as the King, lords and commons, that is the parliament, may be pleased to establish. A vulgar error that no gold is a lawful tender has indeed prevailed here; but I believe it never was questioned in England, whether the king’s coin, either of gold or silver, was such.

      I shall now examine the act of 1749. In the title of said act are these words; “for ascertaining the rate of coined silver in this province for the future”; and in one of the preambles these words, “and it being of great importance that all possible means should be used for establishing an invariable silver currency for the future,” but not a word in the whole act of the alloy of the silver. This is the first time that silver was ever establish’d as money, without fixing the alloy, or fineness. Dollars indeed, are by this act made a tender in discharge of these invariable silver contracts; but the fineness of these is also indeterminate so that as I said before, silver indefinitely, that is silver bullion, and spanish milled dollars of any alloy, are both together the money established by this act; what is worse, even dollars are no tender according to some Gentlemens way of arguing; for the act only ascertains the rate beyond which they shall not be passed, and nothing prevents their being payed at a less rate, nor obliges the creditor to receive them at that, unless you’ll say that, all silver indescriminately, is lawful money of this province at 6s. 8d. per ounce, as this act imports, and that a man is obliged to take fish scales, (as they are vulgarly called) pistareens, and old plate at 6s 8d. per ounce, without regard to the alloy, or fineness; which is contrary to common justice, as well as common sense.

      What shall we say then? have we no standard at all? I answer, yes, a very good one, but it is not to be found in the act of 1749 but in one, that by the wording of this, seems to have been overlooked at that time; I mean the 14 George II C 4, by which it is enacted, “that all coined silver of sterling alloy; shall be accounted paid and taken, as lawful money of this province, at the rate of 6s 8d. per ounce, troy weight, and other money in the same proportion; and no otherwise; and all private trade, and dealings, where no other lawful money, or thing, is expressly contracted for, shall be intended to be in and for the money aforesaid.” The words “other money” in this act, in their just and natural construction, must mean, gold as well as other coined silver. Sterling alloy is the standard of our gold and silver. The fineness of the silver established by the act, must also be taken as the measure of the fineness of the silver mentioned in the act of 1749, and that act must be read, coined silver

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      of sterling alloy, to make it intelligible. Now if the only standard of lawful money is sterling alloy, as it certainly is, as to silver, then I say by the reasoning of some gentlemen, no man can or ought to be obliged to take dollars (that is they are not a tender any more than any other bullion) for the act of 1749 don’t in so many words say dollars shall be a tender. It says indeed, that they shall be received at 6s. and at no higher rate; but if this obliges a man to take them at that rate, as there is a little difference between dollars at 6s. and an english crown at 6s. 8d. why here is two standards say they. But this difference is accounted for by his Honor, to wit, to keep out hammered money and encourage the bringing in the dollars, and the dollars have ever been deemed a tender at 6s. and as good a tender as an English Crown at 6s. 8d. and this brings us to the Act of 23 G. II C v. entitled “An act for ascertaining the rates at which coined silver and gold, &c. may pass within this government.” No lawyer ever doubted (that I heard of till the last session of the court) but gold was a tender according to the rates set in this act, which are the exact proportion to sterling silver. It is observable that an English Crown which is the standard for silver with the denomination of 6s 8d. is one of the coins enumerated, which is one reason to conjecture that, the several species there enumerated were intended for money and consequently a tender. The cotemporery usage is another good argument among lawyers to prove such intent. Every one knows they have ever since been taken as money. And if nonuser, for 60 years, is not a sufficient argument, against the general words of an act, yet surely the universal practice for seven years after is an argument in favour of my construction. The words are “that they shall not be received, taken or payed at any greater or higher rate,” but it is further enacted that fifty pounds penalty shall be forfeited by those who, “receive or pay” them at a greater or higher rate than there regulated and settled, as well as allowed: now settled, to be received and paid, looks to me like fixing the price, and making money of them, and consequently a tender. It has been observed that the act of Parliament, for regulating the price of gold, tho’ it enacts that Guineas shall not be current at more that 28s., has a proviso, that none shall be obliged to take them at that; to which I answer, as heretofore, 1. That this very proviso shows the sense of the parliament, that without that proviso they would have been a tender at 28s. 2. 28s. is 7s. more than they are worth, but our act has put them at their exact sterling standard value. But as some doubt has risen about gold being a tender at any fixed value, it ought to be settled as explicitly as possible in an explanatory act. And if the rates of gold and silver, are not well adjusted, (as I agree with his Honor upon his first thoughts they already are, and with his last thoughts, that) upon a discovery of any mistakes, they ought to be rectified. The invarible standard of silver СКАЧАТЬ