that such regulation "imposes as a penalty for disobedience a denial of an important federal privilege which Congress controls." If a law attempts this, it is invalid. Any legislation excluding from the mails should apply directly to the things mailed, not to the persons using the mails. This is the distinction which, as we have seen, is characteristic of much interstate commerce legislation. It is a distinction which, if valid, and I think the previous discussion has shown that it is, will prevent Congress from doing indirectly with regard to stock exchanges and corporations what it is unable to do directly. A fraudulent concern has the use of postal facilities, but when the mails aid in the fraud, it is abuse, and the federal government punishes. This practically resolves itself into the test mentioned above is the exclusion in the nature of a police regulation?

No extension of the postal power to subjects otherwise exclusively under the control of the states was ever contemplated by the framers of the Constitution or by its expounders until very recently. Alexander Hamilton arguing a century ago that Congress had the power to charter a bank, stated the precise issue:

"The only question," he said, "must be in this, as in every other case, whether the means to be employed, or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus, a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the states, or with the Indian tribes; because it is the province of the federal government to regulate these objects and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage." 47

This theory has been scrupulously followed by the decisions from McCulloch v. Maryland to the present time. Only one case is at variance, that of McCray v. United States, where a tax was upheld. The power to tax is acknowledged, that over the mails is implied. There is thus no inconsistency. But this vital difference in the nature of the power makes it most important that in the

47 The Federalist (Ford's edition), 657.

extension of the postal authority the end be clearly legitimate; the means clearly proper and appropriate; the purpose one clearly sanctioned by the Constitution. In the proposed "nullification by indirection" under the post-roads clause the end is not legitimate, the means not appropriate, and the purpose one not warranted by the Constitution.

When this is the case, it is the privilege and duty of the courts to intervene. For, as Marshall asked, "to what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" 48 Subject the extension of the postal power to the test of reason, and the answer will be that the federal government may not thus do indirectly, what it is not permitted to accomplish directly. Consider the question in the light of the decisions of the Supreme Court, and the answer is the same. The court can take no other position "without abdicating its highest function and permitting the practical nullification of the Constitution itself." 49

JOHNS HOPKINS UNIVERSITY.

48 Marbury v. Madison, I Cranch 137.

Lindsay Rogers.

49 Victor Morawetz, "The Power of Congress to Enact Incorporation Laws and to Regulate Corporations," 26 HARV. L. Rev. 667.

THE FUNDAMENTAL LAW AND THE POWER OF THE COURTS.

PROFESSOR GRAY, in his recent book entitled “The Nature

and Sources of the Law," argues at length in support of the view that, in England and the United States at least, the law consists of the rules which the courts enforce, and that the courts are the real makers and creators of the law. He does not directly consider, however, the possible bearing of this view of the meaning of law upon the development of constitutional law in this country. It is the purpose of the writer of the present paper to draw attention to this question, with the object of showing, not only that this view of the meaning of law finds support in the way in which our constitutional law has developed, but that the assumption by the courts in this country of the power to declare void legislative acts which are inconsistent with our written constitutions finds its true explanation in the fact that all of our law is the law of a court. In other words, the development of constitutional law in this country is but another illustration, and a striking one, of the fact that the existence and development of all law, whether fundamental or common, is dependent upon the existence of a court having power to interpret and enforce it. Without the court the law does not exist.

The objection will at once be made that if the explanation of the power of the courts to declare void legislative acts is to be found in the nature and meaning of law, then the fact that a constitution is written can be of no consequence, and the courts of England should therefore claim the same power over legislative acts. But the reason why the regular courts in England do not have this power is, in fact, the very reason why the courts in this country do have, and must exercise, such power. The situation in both countries is explained by the fact that English law is and always has been the law of a court. It is true that this power of the courts in this country does not depend upon the fact that the constitution is written, and the reason why English courts do not have the same power does not depend upon the fact that there is no written con

stitution in England. The explanation is that in England Parliament itself is and always has been a court, and the highest court in the realm; it was a court before it was a legislature in the modern sense, and its present legislative supremacy is due, historically, to the very fact that it was already the highest court. The lower English courts, which could not at any time question Parliament's judicial declarations of the law, were in no better position to question, on the ground of law, the legislative enactments of Parliament. Assume that there was a fundamental law in England (and such a law was much talked of in the seventeenth century, at the very time when the full extent of the legislative power of Parliament was first becoming recognized), nevertheless, when the two houses of Parliament passed an act, their judgment as to the validity of that act under the law of England was not the judgment of a legislative body merely, but was the judgment of the highest court in the land. No lower court could question the act for the reason that, in its opinion, it was inconsistent with the fundamental law.

The position of Congress in this country is entirely different. It is recognized that it is the duty of Congress, when it passes an act, not only to consider whether the act is consistent with the Constitution, but perhaps even to form the definite opinion that it is constitutional. But such judgment is never more than a legislative judgment; it is not the judgment of a court, and if the Constitution is law in the sense in which law is understood in England and the United States, then some court must interpret it and give it effect. Otherwise it ceases to be law at all, just as in England to-day the existence of a fundamental law is not considered, because the two houses of Parliament exercise no regular powers as a court. Their possession of such powers, however, still prevents the other courts from questioning legislative enactments of Parliament as inconsistent with law. It is the purpose of the present paper to develop the contentions here stated more at length.

I.

Professor McLaughlin of Chicago University, in a recent essay on the power of the courts to hold legislative acts void, after quoting from Marshall's opinion in Marbury v. Madison,' goes on to say:

1 1 Cranch (U. S.) 137 (1803).

"Marshall's argument on this phase of the case was brief and direct. To him the Constitution was law, and law meant that the courts were under obligation to accept it and apply it. But of course the mere fact that there was a written constitution in America did not necessarily imply as a logical fact the right of the court to apply that Constitution and ignore the interpretation of the Constitution by the legislative authority; that the Constitution was a law in the sense that it could be and must be maintained by the courts, even when Congress in exercising its legislative power had itself interpreted the Constitution was the very point at issue. The thing then to be explained is why Marshall assumed that if the Constitution was law, the courts must place their interpretation on it and not recognize the right of the legislative body to determine its own rights under it." ?

The explanation of Marshall's assumption in regard to "the very point at issue," as Professor McLaughlin calls it, is to be found, as the present writer contends, in the fact that the Constitution could be law in the English sense only if some court had power to interpret and enforce it; and, while the courts might not "ignore," still they must, if in their judgment erroneous, disregard a merely legislative interpretation of the Constitution. The meaning of the Constitution as law could be determined only by the judgment of some court, and Congress, under the Constitution, was not a court.

Professor McLaughlin does not refer to this aspect of the situation, but is content to base Marshall's position upon an "historical background." He says:

"The explanation of Marshall's position must be sought in the historical background, not in mere logical disquisition on the Constitution alone; certainly we cannot rest the judicial authority simply on the supposition that a written constitution can and must be interpreted in courts."

He then traces the idea of a fundamental law back through earlier opinions of courts in this country, and in expressions of various writers in this country and in England. No doubt such expressions are very suggestive as evidence of a general state of mind on the subject, but they do not, after all, explain why lawyers like Marshall accepted so readily, as a necessary logical conclusion,

2 The Courts, the Constitution and Parties, pp. 9-10.