I’ve never quite understood how bigamy can be illegal. Bigamy means marrying two women. But marriage is a legal relationship recognized by the state. If the state recognizes it, why should it penalize it? If it penalizes the second marriage, then isn’t it partly responsible, since it granted the second marital status? Why doesn’t the state simply state that if you are married, any attempt to re-marry is null and void? This would make it clear that the state is just penalizing the attempt to re-marry—which I suppose means it’s criminalizing the filing of certain documents or applications with the state. But why is that a crime? I suppose it would make a certain sort of sense to characterize it as a crime of perjury, assuming the application from the state made the marriage applicant swear that he was not currently married—but bigamy is the crime, not perjury. It just makes no sense.Likewise, how can the sale of drugs, or of sex, be illegal? A sale is a legally recognized transaction—party A transfers title to his money in exchange for a service from B (sex), or in exchange for B transferring title to his drugs to A. But for it to be a sale, the state has to recognize it. Why would the state recognize something it outlaws? If it does recognize it as a legal transaction, how can it then criminalize it—wouldn’t it then be a partner in the crime?
In fact I would think the transfer or “sale” is not really “legal” under the state’s laws—I doubt a court would enforce a drug dealer’s collections suit against a buyer in default. So really, what the state is trying to penalize is the physical transfer of money if it is somehow associated with the provision of sexual services or the physical transfer of possession of narcotics. But this is not how the crime is characterized; it’s characterized as an actual sale (as far as I know).
Another similar anomaly in the law is the idea of “legal tender”. I must confess I have no idea what legal tender means. It seems like a circular concept to me. US currency has “this note is legal tender for all debts.” Now I suppose this makes a certain sort of sense if the state outlaws gold or contracts denominated in gold, or requires all contracts to be stated in dollars. So if you have an agreement to pay someone “five dollars,” then if they pay you a five dollar bill, that satisfied the agreement. As Hulsmann notes here,
Paper money is protected through “legal tender” laws, which means that you and I can be forced to accept it as payment, even if we have contractually stipulated payment in other commodities.
I assume this is why 31 U.S.C. §5118(d)(2), “An obligation [payable in United States money] containing a gold clause is discharged on payment (dollar for dollar) in United States coin or currency that is legal tender at the time of payment.”
However, the next sentence reads: “This paragraph does not apply to an obligation issued after October 27, 1977.” So, apparently, this means that, since 1977, gold clauses are enforceable. Rothbard noted: “In 1977, gold clause contracts were legalized.” See also Ron Paul, Freedom Under Siege: The U.S. Constitution After 200 Years, p. 145: “After forty years, the right of American citizens to own gold was once again restored in January 1975 (thanks to the work of Jim Blanchard and Congressman Phil Crane). In 1977 Senator Jesse Helms and his legislative assistant Howard Segemark were instrumental in legalizing gold clause contracts, a right taken from us by FDR and the liberal courts in the 1930’s. Although these contracts are not yet commonly used, this legal step is of great importance to the hard money movement.”
In any event, if contracts can now be specified in, say, gold, then what does it mean to say dollars are legal tender? As Clifford Thies notes, before gold clauses were outlawed by Roosevelt, “Congress could make paper money into legal tender; but a gold clause could, nevertheless, require debtors to pay in gold. Consequently, the gold clause could protect creditors from monetary uncertainty.” If I owe you an ounce of gold, then how could dollars satisfy this, unless enough dollars equal to the current market value of gold is paid—in which case, no one cares, because the creditor can instantly redeem the dollars for the specified amount of gold. Legal tender would seem to have virtually no meaning.
As recounted in The Bank of England and Me, when I was a student in London in 1991-92, I noticed that pound notes had a less ambiguous phrase: they say, e.g., “Bank of England: I promise to pay the bearer on demand the sum of five pounds.” Well, that’s more similar to promissory note language. I assumed it had some origin in pounds of silver or something—so that if honored, the Bank would have to hand me a bag of silver weighing five pounds in exchange for my five-pound note. The “promise to pay” language seemed to prevent the Bank from cutting the tie between gold (or silver) and its notes—basically implying 100% reserves. So, one day I decided to visit the Bank of England to see what they would do if I presented a 5-pound note for redemption of the promise to pay the bearer “five pounds” on demand. The tale was told in a guest reflection in Liberty in 1994; the text is reproduced below:
Funny money - There’s some funny language on the money in England. The five-pound note contains the statement, “Bank of England: I promise to pay the bearer on demand the sum of five pounds.” Five pounds of what? If you ask anybody on the street, the note is five pounds, and they obviously aren’t talking about units of weight—so what could that statement possibly mean? I decided to visit the Bank of England in downtown London to make them make good [on] their promise. What would they do—hand me back another five-pound note in exchange for the one I offered? I was stopped at the door by a security guard. I explained that my note said that the Bank would give me five pounds upon demand for it, and that I was hereby demanding they fulfill their obligation. He explained I couldn’t get past the front desk without wearing a three-piece suit and having “official business.” The man behind the front desk had little patience, telling me that perhaps I’d find some information if I went to the Bank of England Museum around the comer. So I left and went to the museum, which is quite nice, actually. I explained to a curator what had happened, and that I was interested in finding out what exactly the language could mean. It obviously didn’t function as a promise to pay me five pounds—the bank wouldn’t even let me through the door! She disappeared into a back room and, finally, dug up an old photocopy from God-alone-knows-where, which attempts to explain the meaning and evolution of the “I promise to pay the bearer” language. I took the pages home and tried to understand them. Apparently, the Bank is now contending that the language only means, and only ever meant, that it has an obligation to replace old, out-of-circulation pound notes with new, in-circulation ones. Right. That’s what “I promise to pay the bearer on demand the sum of five pounds” means.
