At least twice in his career, Lysander Spooner (1801 - 1887) commented on the existence and circulation of privately made gold coins in the United States. In 1844, when rebutting the Postmaster General's claim that the constitutional right of Congress to establish post office post roads was an exclusive one, like that of coining money, Spooner noted that
Provided individuals do not 'counterfeit' or 'imitate' 'the securities or current coin of the United States,' they have a perfect right, and Congress have no power to prohibit them, to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they will bring in competition with the coin of the United States. It was stated in Congress a few years ago... that in some parts of the gold reigon of [North Carolina], a considerable portion of their local currency consisted of pieces of gold, weighed, assayed, and marked by an individual, in whom the public had confidence. And this practice was as unquestionably legal, as the sale of gold in any other way.
In 1886, in A Letter to Grover Cleveland, Spooner observed that the power of Congress to coin money was simply a power to weigh and assay metals and that there was no necessity that such a service be provided by or be limited to the federal government. Spooner claimed it would have been best if all coins made by the authority of Congress or private individuals "had all been made into pieces bearing simpy the names of pounds, ounces, pennyweights, etc., and containing just the amounts of pure metal described by those weights. The coins would then have been regarded as only so much metal... And all the jugglery, cheating, and robbery that governments have practiced, and licensed individuals to practice - by coining pieces bearing the same names, but having different amounts of metal - would have been avoided." Spooner also mentioned that for many years after the discovery of gold in California, "a large part of the gold that was taken out of the earth, was coined by private persons and companies, and this coinage was perfectly legal. And I do not remember to have ever heard any complaint or accusation, that it was not honest and reliable."
Spooner's references to private gold coinage reflect the poineers' search for a way to satisfy their monetary needs. Where there were no government mints and when State coinage was scarce, but where gold was plentiful, it was only natural that the demand for gold coinage would be satisfied by market means. This aspect of numismatic history of the United States demonstrates how "natural society" operates in the absence of the State. If there is a market demand for a good or service, then some entrepreneur(s) will satisfy it. The people of the frontier were more concerned with the intrinsic worth and quality of their media of exchange than with who issued it. There was nothing special about coinage. In the Southeast during the Civil War it became customary to specify the settlement of monetary obligations in "Becthler gold" rather than Union coin or Confederate or state currencies. A similar preference manifested itself in Colorado, where Clark, Gruber & Co. coins were the preffered media of exchange during the same era.
The production and circulation of these coins was absolutely legal, though never sanctioned by any positive law. "By the time of the Colorado gold rush, [the] private coiners' common law right to issue gold coins of intrinsic value comparable to the Federal products was undisputed." A "common law right" simply means the right to engage in any form of peaceful, honest market activities. No activity, commercial or otherwise, is outlawed, unless it is inherently invasive of another person and/or his or her property.
The "hard money" movement today has little if no understanding of the significance of the voluntary principle and the voluntaryist approach to social change. First, few "hard money" advocates believe in a monetary system totally free of State interference. Secondly, only a few seem prepared to abandon legal tender laws and adopt the principle of the specific performance doctrine (that monetary debts can be settled only in accord with the specifications of the contract of debt). Thirdly, many seem enamored of lobbying for legislative changes rather than ignoring unjust laws and seeking to make those laws unenforceable through mass noncompliance. Even the legalization of gold ownership and the legalization of gold clauses in private contracts is clouded because of the past confiscatory history of the United States government during the New Deal and the continued existence of legal tender laws today. It should be fairly obvious that a State strong enough to legislate and enforce legal tender laws in certainly strong enough to abrogate such laws when it so chooses. The voluntaryist attitude that positive legislation and court decisions can never overrule the natural rights of individuals to deal in gold or silver is negated by most hard money advocates when they use the legislative process to obtain permission to own gold and use the gold clause in contracts.
Just over 100 years ago, private issues of gold coins and ingots were the dominant media of exchange in the western areas of this country. Gold issues today, such as the Englehard gold "Prospector," and the output of Gold Standard Corp. in Kansas City, are reminiscent of this earlier frontier era. Even the United States government is trying to take advantage of investor interest in gold coins, by issuing the new gold "Eagle," a one ounce coin with a legal tender value of $50. Before 1933, when FDR's administration confiscated all privately held gold (with the exception of numismatic coins), an ounce of gold was worth $20 on the market. Since that time no political administration has ever returned the confiscated gold to its rightful owners. Meanwhile the one ounce gold coin which was then referred to as a "double eagle" has become dubbed the "Eagle" (which formerly was only one-half ounce of gold) and the new coin's legal tender value bears no relationship to the free market price of gold (which at the time of this writing is about $400 per ounce). Unlike today, the almost complete absence of paper currency, coupled with the traditional use of gold coins, led to the rejection of federal greenbacks in California during the time of the Civil War.
Private gold coinage had its origins during the gold rush that occurred in Georgia and North Carolina in 1828. Prior to the discovery of gold in California in 1848, these southeastern states produced more gold than any other region in the country. In 1840, the Director of the Mint, in his report to Congress, referred to Christopher Bechtler who operated a private mint in Rutherfordton, North Carolina, in competition with the U.S. mint at Charlotte. The Mint Director could take no legal action against Bechtler, for he observed: "It seems strange that the privilege of coinage should be carefully confined by law to the General Government, while that of coining gold and silver, though withheld from the States, is freely permitted to individuals, with the single restriction that they must not imitate the coinage established by law."
By the time of the California Gold Rush, Bechtler and his family had minted well in excess of 100,000 coins. Though the mint in Charlotte had been established in 1838, the Bechtlers continued to issue gold coins until the late 1840's. Their mint successfully competed with the mint at Charlotte because the Bechtlers were much closer to the gold mining areas and had an established reputation.
In California, many of the conditions which had originally sparked the Bechtler mint into life were to be found. American settlement began in California as early as 1841, and by 1846 there was extreme agitation for making California an American territory. U.S. forces occupied California during the Mexican War, and in 1848 Mexico ceded all of its claims to California to the United States. Gold was discovered in January 1848 and the Gold Rush, as we know it, began in the fall of that year. Military government lasted until October 1849, at which time a state convention created a constitution and made a formal request for admission to the Union. Meanwhile government on all levels barely existed: There was no formal law, there were no jails, immigration to the gold fields progressed unimpeded, and the military strength of the Federal government was relatively weak. Finally, in September 1850, California was accepted as a state and the struggle began to establish formal government. Communication with the East was difficult until the telegraph reached the state in 1861, and transportation remained a problem even after direct rail connection was made with the East in 1869.
The requirements of the early mercantile community in California, especially of San Francisco businesses, led directly to many of the events in which we are interested. According to Federal law in effect in 1849, all custom duties due the United States were payable in lawful United States coin. Accordingly, every piece of coined money which existed in California was hoarded to pay import duties and the normal channels of trade suffered from a shortage of coined money. At first gold dust was used as a substitute for coined money, but the military governor discovered that the law regarding duties could only be satisfied by a tender of coins, whether gold or silver. Thus gold coins eventually came to command a premium over gold dust since they were desperately needed at the Custom House. Since the supply of coins was so limited, it was suggested by members of the mercantile community that private assayers issue gold pieces to fill the need. The first suggestion to this effect appeared in July 1848, and by early 1849 private issues were struck. The private issues enabled the miners to get more coined money for their gold dust and allowed a greater number of coins to circulate in general trade.
The first private gold coin was probably issued by the firm of Norris, Gregg & Norris and was followed, during the summer of 1849, by strikes from the assay and gold brokerage business of Moffat & Co. At first gold dust was assayed and formed into rectangular ingots with the firm's name, the fineness (in carats) and the dollar value appearing on the bar. Shortly thereafter a $10 gold piece, struck as a circular coin, was issued by Moffat & Co. By the end of 1849, a virtual avalanche of private issues had found circulation in California, including minting work done by the Mormons in Salt Lake City, by J. S. Ormsby & Co., and the Miners' Bank.
The coins with which the early Californians had to do business soon fell into disrepute, as it was discovered that their intrinsic value did not always match their stamped value. The Mormon coins, which only contained $17 worth of gold in a $20 piece, soon ceased to circulate, as did many of the other private coins. The holders of such pieces had to sell their coins at bullion value and pocket the loss. Moffat & Co., whose pieces were always worth at least 98 percent of their stamped value, continued to issue coins in 1850, at which time there also appeared new issues by Baldwin & Co., Dubosqu & Co., and by Frederick Kohler, the newly appointed state assayer.
By April 1850 the coin situation had come to the attention of the state legislature and during the same month laws were passed which prohibited private mints. Simultaneously, to fill the demand for coined money, the California legislature created the State Assay Office, which was responsible for assaying gold dust, forming it into bars, and stamping it value and fineness thereon. The State Assay Office is unique because it was the only establishment of its kind ever operated in the United States under the authority of a state government, and because its issues were so closely allied to that of gold coinage it is questionable that it did not violate the constitutional clause against state coinage. The State Assay Office was soon superseded by The U.S. Assay Office, which was established by Federal statute on September 30, 1850. Moffat & Co. became the contractor for the U.S. Assay Office and began operations in this capacity in February 1851. A month later the state prohibition on private coinage was repealed, since well over a million dollars' worth of gold had been privately coined in the first quarter of 1851 alone, so great was the demand for bars and coins.
Although Moffat & Co. became associated with the U.S. government as its assay contractor, they always recognized the right of private persons or firms to issue their own gold coins. In responding to criticisms leveled directly at them during the passage of the state prohibition on private issues they stated : "We aver that we have violated no law of the United States in regard to coining (our own) money; that we have defrauded no man of one cent by issuing our coin; that we have in no instance refused or failed to redeem in current money of the United States all such issues without detention or delay, and we hold ourselves ready now and at all times hereafter to do so... We hold ourselves responsible for the accuracy of our stamp, whether it be upon bullion or in the forms of ingots or coin. If there be error then the party aggrieved has his remedy at common law."
Moffat & Co. was apparently the most responsible of the private concerns minting money, for in April 1851, the businesses of San Francisco placed an embargo on all private gold coinage except Moffat. The remainder of the private issues were soon sent to the U.S. Assay Office, slugs of not less than $50 were to be issued. Such ingots were too large for normal trade and soon a demand grew for coins of smaller denominations. Moffat & Co., as contractors for the U.S. Assay Office, requested authority to issue such coins. Since their authority was not forthcoming, in the end Moffat & Co bowed to the demands of the merchants and minted such soins under their own authority and mark.
The situation worsened in 1852, when the U.S. Customs House refused to accept the $50 ingots issued by the U.S. Assay Office. Although these slugs were issued under the direct authority of the Federal government, their fineness was only that of the average California gold, perhaps 887/1000 fine. A new federal law required that all customs duties be paid in gold coinage of the fineness of standard U.S. coins, which was 900/1000 fine. Therefore the Treasury Department instructed its agents not to accept the issues of its own Assay Office, until these issues met the required fineness. The Washington authorities did not seem to recognize the ridiculousness of their decision, which not only disparaged their own issues, but practically denied the merchants any circulating medium at all. Eventually the controversy was settled by having the Assay Office conform to the higher fineness.
The Federal mint, which had long been agitated for in California, went into partial operation in April 1854. Within a few years it satisfied all the demand for coins. Until it went into full-scale operation, however, the demand for circulating coins was met by the issues of such private concerns as Kellogg & Richter, Kellogg & Humbert, and Wass. Molitor & Co. At the end of 1855 it was estimated that there was still some five to eight million dollars' worth of private coin in circulation. In the summer of 1856 coin was needed in San Francisco for export purposes, and both the issues of the U.S. mint and private coins were used to meet this need. By October 1856 the Federal mint was apparently able to meet all demands for coins in domestic circulation and for export, so that private issues of gold coin quietly passed out of existence. There is no record of any further private minting in California after this time.
Although paper money found circulaton in the East, at no time before the Civil War did banknotes play a substantial part in the circulating media of California. Between the cessation of private issues and the outbreak of the Civil War, the Federal mint in San Francisco continued to satisfy all demands for coins. This tradition of handling gold and silver coinage in California was buttressed by the provision of the state constitution which expressly prohibited the creation of any (paper) credit instruments designed to circulate as money.
The metallic coinage of the Californians had provided them with a remarkable prosperity and stable purchasing power. Therefore, when as a result of the Civil War the Federal government issued legal tender notes in 1862, Californians were faced with the prospect of handling paper money for the first time. Acceptance and use of these new "greenbacks" (which had no gold backing, only the general credit of the government behind them) became a subject of public debate in California. Objections to the new currency concerned its constitutionality and the likelihood of its depreciation in terms of purchasing power.
Creditors were particularly fearful that their interests would be hurt as it would be possible for debtors to repay their loans in depreciated currency. At first this is exactly what happened, as can be seen from the grievance of a Sacramento financier :
About four years ago  I loaned $10,000 in gold coin of the United States to John Smith of Sacramento City, for which said Smith executed me a note, in the usual form, bearing interest at the rate of one and one-half per cent per month. This note I placed in the hands of my bankers, D. O. Mills & Co., Sacramento, with the instructions to receive and receipt for the interest as it accrued thereon, and also to collect the principal at maturity. In January last , Mr. Smith called at the banking house... and tendered $10,000 in greenbacks in payment in full on the note executed to me, knowing that the said notes were not at that time worth more than 68¢ on the dollar... [My bankers] refused to received the tendered greenbacks without consultation with me, and, moreover denounced the conduct of Mr. Smith as unfair in the extreme, at the same time reminding him of the fact that he had received the whole amount in gold coin. After a conference more protracted than pleasant, Mr. Smith offered to pay $10,000 in greenbacks and $1,000 in gold, which proposition, rather than be a party to a tedious and expensive lawsuit, I assented to... As it is, I am loser to the amount of $2,200, allowing 68¢ on the dollar for greenbacks, and at the rate they are now selling - and I still have them on hand - my lose is about $3,500.
However, there were those who favored introduction of the legal tender notes in California. Loyalty and patriotism to the Union were advanced as the chief reasons. Some thought that a refusal by the people of California to use the currency of the Federal government would be tantamount to secession. Others felt that the greenbacks would act as a stimulus to business, and hoped to profit from the speculation inherent in their use.
Since the Federal notes continued to lose purchasing power, the commercial elements in San Francisco realized that a definite stand had to be taken on the use and acceptance of the greenbacks in local transactions. Business that had contracts with the Federal government were hard hit by the inflation, as they had expected to receive gold coin for their work and instead were paid in paper of a lesser value. Federal employees also found themselves at a serious disadvantage in receiving their wages and salaries in depreciated money, while their expenses were counted in gold. In November 1862 the merchants of San Francisco attempted to counter the use of greenbacks by effecting an agreement among themselves
not to receive or pay out legal tender at any but market value, gold being adhered to as the standard. The plan was to have this agreement signed by all the leading firms of the city; then to have it signed also by all other firms, both those in the city, and those in the country who had dealings with the city. If any one refused to enter the association, or having agreed to pay for goods in gold, paid for them in greenbacks at par instead, then his name should be entered in a black book, and the firms all over the State should be notified so that in all his subsequent dealings he would be obliged to pay for his goods in gold at the time of purchase.
As early as July 1862 questions raised by the circulation of the greenbacks had received attention in the courts. A case was brought before the Supreme Court of California during this month which sought "To compel the defendant, as tax collector of the city and county of San Francisco, to accept from the relator $270.45 in United States notes tendered in payment for the present year." The tax collector had refused to accept the tender of paper money, claiming that his duty was to accept only "legal coin of the United States, or foreign coin at the value fixed for such coin by the laws of the United States." The court judged in favor of the tax collector and thus prohibited the payment of taxes in greenbacks.
At the same time the State Treasurer pulled off an ingenious financial coup by taking advantage of depreciation of the paper currency. The plan was to collect the Federal direct tax in coin and pay it into the U.S. Treasury in legal tender notes, saving the difference for the state. This "earned" the state the sum of $24,620, but the action was almost universally condemned. The moral attitude of the San Franciscans on paying their debts in depreciated money is well illustrated by the fact that the interest on the City's municipal bonds were paid in gold at New York, rather than in legal tender notes. To pay in depreciated notes was considered beneath the dignity of the city and a real violation of the faith pledged with the holders of the bonds abroad.
Although Californians could continue to own gold the very existence of the legal tender law created a general feeling of insecurity. The merchants of San Francisco were determined to remain on the gold standard and they were encouraged by the decision of the court in favor of the tax collector. In order to keep the business of the state on a gold basis, however, it became clear to the merchants that legislation must be had to enable the parties to a contract to enforce the collection of the kind of money wich had been specified in the contract. They had at first attempted to agitate for exemption of California from the Federal legal tender law, but their resolution to this effect in the state legislature was postponed indefinitely. Later, resolutions were introduced in the legislature to obtain relief for those working for the Federal government by having them paid in gold coin. Nothing was gained by the discussion of these resolutions except to arouse the ire of advocates of the greenbacks.
These legislative maneuvers, even if they had been successful, would not have accomplished what was needed to keep the state on a specie basis. Slowly people realized that, where there were two different types of money in circulation, legislation was needed to make it possible to enforce contracts in either paper currency or metallic coinage, as provided for in the contract. Advocates of such legislation held that "contracts fairly made in view of all the circumstances ought to be enforced. If, then, contracts are made specifically to be performed by the payment of gold, it seems to us to be a duty on the part of the legislature to provide the remedy for their enforcement. Common honesty cannot refuse this."
The legislation which accomplished this objective was approved on April 27, 1863. By amending the procedures in civil cases, writs of execution or judgment on a contract or obligation for the direct payment of money in a specified kind of money or currency had to be fulfilled by the same kind of money or currency that was specified in the original contract or obligation. This came to be known as the Specific Performance Act or Specific Contract Law, since it voided the requirement of the Federal legal tender act and substituted the provisions of each contract for purposes of determining what kind of money was to satisfy a debt. In the discussion that led to the passage of this bill in the state legislature it was pointed out that there was no mention of gold or silver in the law itself. The law simply let the freely contracting parties choose the means of payment between themselves. Formerly there had been no legal means to enforce payment of gold coin on a contract or debt, even though it had been specified as the means of payment. A man owing $100 in gold could pay it with $100 of legal tender notes, even if $100 in notes would only buy $50 in gold coin. Now a creditor could seek justice. Supporters of this legislation were not entirely antagonistic to the use of legal tender notes, but they saw no reason to compel acceptance of paper money at an artifically enforced value. The law did not discriminate between the two types of money, but it enabled the parties to make contracts understandingly and upon equal terms, regardless of whether they choose gold or paper as the means of payment.
Any opposition to the Specific Contract Law which may have existed was disarmed by a State Court decision of July 1864, which upheld the act as constitutional. It was ruled that the specific contract to pay in gold was more than a contract merely for the payment of money, but went to the extent of defining by what specific act the contract should be performed. The court noted that,
A contract payable in money generally is undoubtedly, payable in any kind of money made by law legal tender at the option of the debtor at the time of payment. He contracts simply to pay so much money, and creates a debt pure and simple; and by paying what the law says is money his contract is performed. But, if he agrees to pay in gold coin, it is not an agreement to pay money simply, but to pay or deliver a specific kind of money, and nothing else; and the payment in any other is not a fulfillment of the contract according to its terms or the intention of the parties.
The Specific Performance Act was also held to apply to contracts made before its passage. In an action brought before the court to enforce gold payment of a note which had been executed before the passage of this legislation, it was held that "where laws confessedly retrospective have been declared void, it has been upon the ground that such laws were in conflict with some vested right, secured either by some constitutional guarantee or protected by the principles of universal justice." But this act "takes a contract as it finds it, and simply enforces a performance of it according to its terms," and is not changing the relations of the parties to the contract. The Specific Contract Law was also used to enforce payment under agreements "to pay a specific sum in gold coin or upon failure thereof, to pay such further sum as might be equal to the difference in value between gold coin and legal tender notes." As the San Francisco Chamber of Commerce noted in 1864, the Specific Contract Act "simply enforces the faithful performance of contracts. It enjoins good faith, a principle which lies at the very foundation of public prosperity, and without which there can be no mutual confidence, no progress, no credit and no trade."
Apparently the Federal government took little or no notice of the actions of the Californians during the Civil War. In fact the Specific Contract Law remains on the California statute books (as Section 667 of the California Code of Civil Procedures) and has never been changed by California legislation. And it was not until 1935 that the Federal government took any action to abrogate this state legislation (by outlawing gold clause contracts). However, as early as 1861 the Secretary of the Treasury realized that private coinage was a danger to the government's own prerogatives. Between 1860 and and 1862 the firm of Clark, Gruber & Co. was engaged in the manufacture of their own coins from their mint in the city of Denver. Here again, the demand for a circulating medium was satisfied by private means before the government was able to act. The Clark, Gruber coins were of high quality and always either met or exceeded the gold bullion value of similar United States coins. In a peroid of less than two years this firm minted approximately three million dollars' worth of coin. Their mint promised to outdo the government's own production, and to get rid of them, the government bought them out in 1865 for $25,000.
Such private competition with the Federal mints led to an amendment of the coinage laws of the United States which prohibited private coinage. By an Act of Congress, on June 8, 1864, it was ruled:
That if any person or persons, except now authorized by law, shall hereafter make, or cause to be made, or shall utter or pass, or attempt to utter or pass, any coins of gold or silver, or other metals or alloys of metal, intended for the use and purpose of current money, whether in the resemblance of the coin of the United States or foreign countries, or of original design, every person so offending shall, on conviction thereof, be punished by fine not exceeding three thousand dollars, or by imprisonment for a term not exceeding five years, or both, at the discretion of the court, according to the aggravation of the offence.
It was not until after 1870, when Federal bank charters were granted to banks in California, that banknote circulation gained any real foothold in California. The entire history of California money up until that time supports the observation that "the more efficient money will drive from circulation the less efficient if the individuals who handle money are left free to act in their own interest." Thus in the early period the Moffat coinage, because it was consistently of higher quality, won out in the struggle among private issues. Since there was no legal tender law compelling people to use the coins of a particular company or mint, that money which best satisfied the people was most often used. Issues of questionable fineness were either rejected, or valued at bullion value and returned to the melting pot. Wherever the government failed to provide sufficient coined money private firms and private individuals soon filled the void, so long as they were not prevented from doing so by law.
The latter period under discussion, dated from the beginning of the Civil War, more closely resembles our own monetary situation today. The period was one of government inflation, caused generally by the budgetary strains of war. Issues of legal tender notes cause prices to rise, and between 1860 and 1864 prices doubled in the northern states. The rate of interest was appreciably affected in California due to the uncertainty of having debts paid off in greenbacks. Nevertheless, Californians avoided much of the government inflation by adhering to the gold standard and enacting the Specific Performance Act. Their main objection to the legal tender notes was to using them at an artificial value enforced by law. This realization defeated the purpose of the Federal government (or debtors who chose to cancel their debts with such notes) since their object was to obtain goods and services on a compulsory basis at an undervalued price. Since the power of the Federal government did not reach as strongly into California as into the North, people there were able to avoid the compulsory aspects of the tender law and value the government notes as they saw fit. (It is interesting to note that in San Francisco both paper and gold continued in use until 1914. With the outbreak of World War I the Federal Reserve Bank was desperate to put a stop to the handling of gold. By allowing the banks to pay only in $20 gold pieces when payment was demanded in gold, $5 and $10 pieces were gradually removed from circulation, and thus the effective base of gold handling was undercut.)
Given the demise of both private and government gold coinage, it is difficult to imagine how commodity money will once again assert its dominance in market exchanges. Yet there is a natural law at work which assures us that paper is not gold, despite all the statist protestations to the contrary. Both voluntaryists and "hard money" advocates need to be aware of the monetary history related in this article. Not only is the moral case for private coinage laid out, but its very existence just over a century ago proves that such a system was functional and practical.