Down with Legal Tender
[This article is excerpted from chapters 4, 5, and 6 of Denationalisation of Money: the Argument Refined.]
When one studies the history of money, one cannot help wondering why people should have put up for so long with governments exercising an exclusive power over 2,000 years that was regularly used to exploit and defraud them. This can be explained only by the myth — that the government prerogative was necessary — becoming so firmly established that it did not occur even to the professional students of these matters (for a long time including the present writer) ever to question it. But once the validity of the established doctrine is doubted, its foundation is rapidly seen to be fragile.
We cannot trace the details of the nefarious activities of rulers in monopolizing money beyond the time of the Greek philosopher Diogenes, who is reported, as early as the 4th century BC, to have called money the politicians' game of dice. But from Roman times to the 17th century, when paper money in various forms begins to be significant, the history of coinage is an almost-uninterrupted story of debasements, or the continuous reduction of the metallic content of the coins and a corresponding increase in all commodity prices.
History Is Largely Inflation Engineered by Government
Nobody has yet written a full history of these developments. It would indeed be all too monotonous and depressing a story, but I do not think it an exaggeration to say that history is largely a history of inflation, and usually of inflations engineered by governments and for the gain of governments — though the gold and silver discoveries in the 16th century had a similar effect.
Historians have again and again attempted to justify inflation by claiming that it made possible the great periods of rapid economic progress. They have even produced a series of inflationist theories of history, which have, however, been clearly refuted by the evidence: prices in England and the United States were at the end of the period of their most rapid development almost exactly at the same level as 200 years earlier. But their recurring rediscoverers are usually ignorant of the earlier discussions.
Deflation in the Early Middle Ages: Local or Temporary?
The early Middle Ages may have been a period of deflation that contributed to the economic decline of the whole of Europe. But even this is not certain. It would seem that on the whole, the shrinking of trade led to the reduction of the amount of money in circulation, not the other way round. We find too many complaints about the dearness of commodities and the deterioration of the coin to accept deflation as more than a local phenomenon in regions where wars and migrations had destroyed the market and the money economy shrank as people buried their treasure.
But where, as in northern Italy, trade revived early, we find at once all the little princes vying with one another in diminishing the coin — a process that, in spite of some unsuccessful attempts by private merchants to provide a better medium of exchange, lasted throughout the following centuries until Italy came to be described as the country with the worst money and the best writers on money.
But though theologians and jurists joined in condemning these practices, they never ceased until the introduction of paper money provided governments with an even cheaper method of defrauding the people. Governments could not, of course, pursue the practices by which they forced bad money upon the people without the cruelest measures. As one legal treatise on the law of money sums up the history of punishment for merely refusing to accept the legal money,
From Marco Polo we learn that, in the 13th century, Chinese law made the rejection of imperial paper money punishable by death, and twenty years in chains or, in some cases death, was the penalty provided for the refusal to accept French assignats. Early English law punished repudiation as lese-majesty. At the time of the American revolution, non-acceptance of Continental notes was treated as an enemy act and sometimes worked a forfeiture of the debt.
Absolutism Suppressed Merchants' Attempts to Create Stable Money
Some of the early foundations of banks at Amsterdam and elsewhere arose from attempts by merchants to secure for themselves a stable money, but rising absolutism soon suppressed all such efforts to create a nongovernmental currency. Instead, it protected the rise of banks issuing notes in terms of the official government money. Even less than in the history of metallic money can we here sketch how this development opened the doors to new abuses of policy.
It is said that the Chinese had been driven by their experience with paper money to try to prohibit it for all time (of course unsuccessfully) before the Europeans ever invented it. Certainly European governments, once they knew about this possibility, began to exploit it ruthlessly, not to provide people with good money, but to gain as much as possible from it for their revenue.
Ever since the British government, in 1694, sold the Bank of England a limited monopoly of the issue of bank notes, the chief concern of governments has been not to let slip from their hands the power over money, formerly based on the prerogative of coinage, to really independent banks. For a time, the ascendancy of the gold standard and the consequent belief that to maintain it was an important matter of prestige, and to be driven off it a national disgrace, put an effective restraint on this power. It gave the world the one long period — 200 years or more — of relative stability during which modern industrialism could develop, albeit suffering from periodic crises.
But as soon as it was widely understood some 50 years ago that the convertibility into gold was merely a method of controlling the amount of a currency, which was the real factor determining its value, governments became only too anxious to escape that discipline, and money became more than ever before the plaything of politics. Only a few of the great powers preserved for a time tolerable monetary stability, and they brought it also to their colonial empires. But Eastern Europe and South America never knew a prolonged period of monetary stability.
But while governments have never used their power to provide a decent money for any length of time, and have refrained from grossly abusing it only when they were under such a discipline as the gold standard imposed, the reason that should make us refuse any longer to tolerate this irresponsibility of government is that we know today that it is possible to control the quantity of a currency so as to prevent significant fluctuations in its purchasing power. Moreover, though there is every reason to mistrust government if not tied to the gold standard or the like, there is no reason to doubt that private enterprise whose business depended on succeeding in the attempt could keep stable the value of a money it issued.
Before we can proceed to show how such a system would work we must clear out of the way two prejudices that will probably give rise to unfounded objections against the proposal.
The Mystique of Legal Tender
The first misconception concerns the concept of "legal tender." It is not of much significance for our purposes, but is widely believed to explain or justify government monopoly in the issue of money. The first shocked response to the proposal here discussed is usually, "But there must be a legal tender," as if this notion proved the necessity for a single, government-issued money believed indispensable for the daily conduct of business.
In its strictly legal meaning, "legal tender" signifies no more than a kind of money a creditor cannot refuse in discharge of a debt due to him in the money issued by government. Even so, it is significant that the term has no authoritative definition in English statute law. Elsewhere, it simply refers to the means of discharging a debt contracted in terms of the money issued by government or due under an order of a court.
Insofar as government possesses the monopoly of issuing money and uses it to establish one kind of money, it must probably also have power to say by what kind of objects debts expressed in its currency can be discharged. But that means neither that all money need be legal tender, nor even that all objects given by the law the attribute of legal tender need to be money. (There are historical instances in which creditors have been compelled by courts to accept commodities, such as tobacco, which could hardly be called money, in discharge of their claims for money. )
The Superstition Disproved by Spontaneous Money
The term "legal tender" has, however, in popular imagination come to be surrounded by a penumbra of vague ideas about the supposed necessity for the state to provide money. This is a survival of the medieval idea that it is the state that somehow confers value on money it otherwise would not possess. And this, in turn, is true only to the very limited extent that government can force us to accept whatever it wishes in place of what we have contracted for.
In this sense, it can give the substitute the same value for the debtor as the original object of the contract. But the superstition that it is necessary for government (usually called "the state" to make it sound better) to declare what is to be money, as if it had created the money that could not exist without it, probably originated in the naive belief that such a tool as money must have been "invented" and given to us by some original inventor. This belief has been wholly displaced by our understanding of the spontaneous generation of such undesigned institutions by a process of social evolution of which money has since become the prime paradigm (law, language, and morals being the other main instances). When the medieval doctrine of the valor impositus was in this century revived by the much-admired German Professor G.F. Knapp, it prepared the way for a policy that in 1923 carried the German mark down to one-trillionth of its former value!
Private Money Preferred
There certainly can be and has been money, even very satisfactory money, without government doing anything about it, though it has rarely been allowed to exist for long. But a lesson is to be learned from the report of a Dutch author about China a hundred years ago, who observed of the paper money then current in that part of the world that "because it is not legal tender and because it is no concern of the State it is generally accepted as money."
We owe it to governments that within given national territories today in general only one kind of money is universally accepted. But whether this is desirable, or whether people could not, if they understood the advantage, get a much better kind of money without all the to-do about legal tender, is an open question. Moreover, a "legal means of payment" (gesetzliches Zahlungsmittel) need not be specifically designated by a law. It is sufficient if the law enables the judge to decide in what sort of money a particular debt can be discharged.
The common sense of the matter was put very clearly 80 years ago by a distinguished defender of a liberal economic policy, the lawyer, statistician, and high civil servant Lord Thomas Henry Farrer. In a paper written in 1895, he contended that if nations
make nothing else but the standard unit [of value they have adopted] legal tender, there is no need and no room for the operation of any special law of legal tender. The ordinary law of contract does all that is necessary without any law giving special function to particular forms of currency. We have adopted a gold sovereign as our unit, or standard of value. If I promised to pay 100 sovereigns, it needs no special currency law of legal tender to say that I am bound to pay 100 sovereigns, and that, if required to pay the 100 sovereigns, I cannot discharge the obligation by anything else.
And he concludes, after examining typical applications of the legal tender conception, that,
Looking to the above cases of the use or abuse of the law of legal tender other than the last [i.e. that of subsidiary coins] we see that they possess one character in common — viz. that the law in all of them enables a debtor to pay and requires a creditor to receive something different from that which their contract contemplated. In fact it is a forced and unnatural construction put upon the dealings of men by arbitrary power.
To this he adds a few lines later that "any Law of Legal Tender is in its own nature 'suspect.'"
Legal Tender Creates Uncertainty
The truth is indeed that legal tender is simply a legal device to force people to accept in fulfillment of a contract something they never intended when they made the contract. It becomes thus, in certain circumstances, a factor that intensifies the uncertainty of dealings and consists, as Lord Farrer also remarked in the same context,
in substituting for the free operation of voluntary contract, and a law which simply enforces the performance of such contracts, an artificial construction of contracts such as would never occur to the parties unless forced upon them by an arbitrary law.
All this is well illustrated by the historical occasion when the expression "legal tender" became widely known and treated as a definition of money. In the notorious Legal Tender Cases, fought before the Supreme Court of the United States after the Civil War, the issue was whether creditors must accept, at par, current dollars in settlement of their claims for money they had lent when the dollar had a much higher value. The same problem arose even more acutely at the end of the great European inflations after the First World War when, even in the extreme case of the German mark, the principle "mark is mark" was enforced until the end — although later some efforts were made to offer limited compensation to the worst sufferers.
Taxes and Contracts
A government must of course be free to determine in what currency taxes are to be paid and to make contracts in any currency it chooses (in this way it can support a currency it issues or wants to favor), but there is no reason why it should not accept other units of accounting as the basis of the assessment of taxes. In noncontractual payments, such as damages or compensations for torts, the courts would have to decide the currency in which they have to be paid, and might for this purpose have to develop new rules; but there should be no need for special legislation.
There is a real difficulty if a government-issued currency is replaced by another because the government has disappeared as a result of conquest, revolution, or the breakup of a nation. In that event, the government taking over will usually make legal provisions about the treatment of private contracts expressed in terms of the vanished currency. If a private issuing bank ceased to operate and was unable to redeem its issue, this currency would presumably become valueless and the holders would have no enforceable claim for compensation. But the courts may decide that in such a case contracts between third parties in terms of that currency, concluded when there was reason to expect it to be stable, would have to be fulfilled in some other currency that came to the nearest-presumed intention of the parties to the contract.
The Confusion about Gresham's Law
It is a misunderstanding of what is called Gresham's law to believe that the tendency for bad money to drive out good money makes a government monopoly necessary. The distinguished economist W.S. Jevons emphatically stated the law in the form that better money cannot drive out worse precisely to prove this. It is true he argued then against a proposal of the philosopher Herbert Spencer to throw the coinage of gold open to free competition, at a time when the only different currencies contemplated were coins of gold and silver.
Perhaps Jevons, who had been led to economics by his experience as assayer at a mint, even more than his contemporaries in general, did not seriously contemplate the possibility of any other kind of currency. Nevertheless his indignation about what he described as Spencer's proposal
that, as we trust the grocer to furnish us with pounds of tea, and the baker to send us loaves of bread, so we might trust Heaton and Sons, or some of the other enterprising firms of Birmingham, to supply us with sovereigns and shillings at their own risk and profit,
led him to the categorical declaration that generally, in his opinion, "there is nothing less fit to be left to the action of competition than money."
It is perhaps characteristic that even Herbert Spencer had contemplated no more than that private enterprise should be allowed to produce the same sort of money as government then did, namely gold and silver coins. He appears to have thought them the only kind of money that could reasonably be contemplated, and in consequence that there would necessarily be fixed rates of exchange (namely of 1:1, if of the same weight and fineness) between the government and private money. In that event, indeed, Gresham's law would operate if any producer supplied shoddier ware. That this was in Jevons's mind is clear, because he justified his condemnation of the proposal on the grounds that,
while in all other matters everybody is led by self-interest to choose the better and reject the worse; but in the case of money, it would seem as if they paradoxically retain the worse and get rid of the better.
What Jevons, as so many others, seems to have overlooked, or regarded as irrelevant, is that Gresham's law will apply only to different kinds of money between which a fixed rate of exchange is enforced by law. If the law makes two kinds of money perfect substitutes for the payment of debts and forces creditors to accept a coin of a smaller content of gold in the place of one with a larger content, debtors will, of course, pay only in the former and find a more profitable use for the substance of the latter.
With variable exchange rates, however, the inferior quality money would be valued at a lower rate and, particularly if it threatened to fall further in value, people would try to get rid of it as quickly as possible. The selection process would go on towards whatever they regarded as the best sort of money among those issued by the various agencies, and it would rapidly drive out money found inconvenient or worthless.
Indeed, whenever inflation got really rapid, all sorts of objects of a more stable value, from potatoes to cigarettes and bottles of brandy to eggs and foreign currencies like dollar bills, have come to be increasingly used as money, so that at the end of the great German inflation it was contended that Gresham's law was false and the opposite true. It is not false, but it applies only if a fixed rate of exchange between the different forms of money is enforced.
 F.A. Hayek, The Constitution of Liberty (London and Chicago: Routledge & Keegan Paul, 1960), pp. 324, et seq.
 See Werner Sombart, Der moderne Kapitalismus, 2nd ed. (Munich and Leipzig, 1916–1917), vol. 2; and before him, Archibald Alison, History of Europe (London, 1833), vol. 2; and others. Cf. on them Paul Barth, Die Philosophie der Geschichte als Soziologie, 2nd ed. (Leipzig, 1915), who has a whole chapter on "History as a function of the value of money," and Marianne von Herzfeld, "Die Geschichte als Funktion der Geldwertbewegungen," Archiv für Sozialwissenschaft und Sozialpolitik 56, no. 3 (1926).
 Arthur Nussbaum, Money in the Law, National and International (Brooklyn: Foundation Press, 1950), p. 53.
 On the Chinese events, see Willem Vissering, On Chinese Currency, Coin and Paper Money (Leiden, The Netherlands, 1877) and Gordon Tullock, "Paper Money — A Cycle in Cathay," Economic History Review 9, no. 3 (1956), who does not, however, allude to the often recounted story of the "final prohibition."
 See Nussbaum, Money in the Law; F.A. Mann, The Legal Aspects of Money, 3rd ed. (London: Oxford University Press, 1971); and S.P. Breckinridge, Legal Tender (Chicago: University of Chicago Press, 1903).
 Mann, Legal Aspects of Money, p. 38. On the other hand, the refusal until recently of English courts to give judgment for paying in any other currency than the pound sterling has made this aspect of legal tender particularly influential in England. But this is likely to change after a recent decision (Miliangos v. George Frank Textiles Ltd. ) established that an English court can give judgment in a foreign currency on a money claim in a foreign currency, so that, for instance, it is now possible in England to enforce a claim from a sale in Swiss francs. See Financial Times, November 6, 1975; the report is reproduced in F.A. Hayek, Choice in Currency, Occasional Paper 48 (London: Institute of Economic Affairs, 1976), pp. 45–46.
 Nussbaum, Money in the Law, pp. 54–55.
 Occasional attempts by the authorities of commercial cities to provide a money of at least a constant metallic content, such as the establishment of the Bank of Amsterdam, were for long periods fairly successful, and their money was used far beyond the national boundaries. But even in these cases the authorities sooner or later abused their quasi-monopoly positions. The Bank of Amsterdam was a state agency which people had to use for certain purposes and its money even as exclusive legal tender for payments above a certain amount. Nor was it available for ordinary small transactions or local business beyond the city limits. The same is roughly true of the similar experiments of Venice, Genoa, Hamburg, and Nuremberg.
 Vissering, On Chinese Currency.
 Thomas Henry Farrer, 1st Baron Farrer, Studies in Currency (London: 1898), p. 43.
 Ibid., p. 45. The locus classicus on this subject from which I undoubtedly derived my views on it, though I had forgotten this when I wrote the First Edition of this Paper, is Carl Menger's discussion in "Geld," Collected Works of Carl Menger, (London: London School of Economics, 1892), of legal tender under the even more appropriate equivalent German term Zwangskurs.
 Ibid., p. 47.
 Cf. Nussbaum, Money and the Law, pp. 586–92.
 In Austria after 1922, the name "Schumpeter" had become almost a curse word among ordinary people, referring to the principle that "krone is krone," because the economist Joseph Alois Schumpeter, during his short tenure as minister of finance, had put his name to an order-of-council merely spelling out what was undoubtedly valid law, namely that debts incurred in crowns when they had a higher value could be repaid in depreciated crowns, ultimately worth only 1/15,000th of their original value.
 W.S. Jevons, Money and the Mechanism of Exchange (London: Kegan Paul, 1875), p. 64, as against Herbert Spencer, Social Statics, abridged and revised ed. (London: Williams & Norgate, 1902).
 Jevons, ibid., p. 65. An earlier characteristic attempt to justify making banking and note issue an exception from a general advocacy of free competition is to be found in 1837 in the writings of S.J. Loyd (later Lord Overstone), Further Reflections on the State of Currency and the Action of the Bank of England ( London: 1837), p. 49.
 Jevons, ibid., p. 82. Jevons's phrase is rather unfortunately chosen, because in the literal sense Gresham's law of course operates by people getting rid of the worse and retaining the better for other purposes.
 Cf. F.A. Hayek, Studies in Philosophy, Politics and Economics (London and Chicago: Routledge and Kegan Paul, 1967) and F.W. Fetter, "Some Neglected Aspects of Gersham's Law," Quarterly Journal of Economics 46/2 (1931–1932).
 If, as he is sometimes quoted, Gresham maintained that better money quite generally could not drive out worse, he was simply wrong, until we add his probably tacit presumption that a fixed rate of exchange was enforced.
 Cf. C. Bresciani-Turroni, The Economics of Inflation (London: Allen & Unwin, 1937), p. 174: "In monetary conditions characterised by a great distrust in the national currency, the principle of Gresham's law is reversed and good money drives out bad, and the value of the latter continually depreciates." But even he does not point out that the critical difference is not the "great distrust" but the presence or absence of effectively enforced fixed rates of exchange.