powers expressly granted to it; and that therefore all other powers, which are powers belonging to sovereignty in other civilized nations that are used incidentally and similarly by their national legislatures, are necessary and proper means of carrying into execution the powers vested in Congress, and are in consequence constructively granted to Congress; provided only that such constructive powers be not “expressly withheld" from Congress by the constitution.

No. 3.

Of the rigorous exercise of such powers of Congress according to the said doctrine.

This important constitutional doctrine is a far reaching one. It is laid down in ample terms. It maintains that no such constructive power is defeated, or restricted, by the fact that its exercise may affect the existing rights of individuals. It maintains that, if upon a just and fair interpretation or construction of the whole constitution, a particular power exists, such power may be exercised in cases in which the existing rights of individuals are incidentally affected, as much as in cases in which those rights are not so affected. This scope of the doctrine is asserted in the opinion without any mention or consideration of the ninth amendment of the constitution in connection with such constructive powers. That amendment provides that "the enumeration "in the constitution, of certain rights, shall not be construed "to deny or disparage others retained by the people." Nevertheless, if the constructive or implied power exists as asserted, it must do so to the denial or disparagement of all existing rights retained by the people, which are not expressly enumerated in some part of the constitution. There is no proviso in the opinion withholding the exercise of the constructive power in the cases of rights, the denial or disparagement of which is not expressly prohibited by the enumeration thereof. If the people have retained a right to free elections, or a right to an unimpaired obligation of their contracts, the power can reach either when rigorously exercised, because neither is enumerated in thé constitu

tion. The only provisos are: (1) that the power be not prohibited (that is to say, not expressly withheld); and (2) that it be one which belongs to sovereignty in other civilized governments and is exercised by the sovereign legislatures thereof as incidental to powers identical with those to which it is incident under the U. S. constitution.

The doctrine is not laid down with any limitation that Congress must expressly say that it proceeds in derogation of existing rights. Hence, in the absence of any declaration to the contrary in an act of Congress, the rule for construing it must be as follows: the presumption is that Congress does not proceed according to the good right of its power, but proceeds according to the strict rigour thereof, regardless of all existing rights aforesaid. It has itself no right to respect those rights, unless it expressly declares that it proceeds rightfully in legislating. No matter how exorbitant or odious the rigorous exercise of a power may sometimes be, the presumption in favour thereof must be made in all cases in which the act of Congress contains no express disclaimer. Such presumption is not limited to the particular cases of debased coin and greenbacks, but extends to those of all existing rights within the reach of the rigorous exercise of sovereign powers by sovereign legislatures as aforesaid.

If the opinion in Juilliard v. Greenman be correct as to the constitutional law of legislation, Congress can proceed in a rigorous and not rightful exercise of a legislative power, without expressly declaring that it so proceeds. A fortiori it can proceed in a rigorous exercise of a power, when it expressly declares that it legislates with rigour. Such a rigorous exercise of a constructive power of legislation is as legal as a rightful exercise thereof, whenever the power is not prohibited, (that is to say, not expressly withheld), and is one which belongs to sovereignty and is exercised by sovereign legislatures abroad as aforesaid.

When construction has gone so far in either revealing or ampliating the powers of legislation, the most natural question possible for a critical observer to ask is: What next? The next thing has been already mentioned. It is Mr. Mc

Murtrie's doctrine concerning judicial power and unconstitutional legislation.

No. 4.

Of the effect of the two foregoing doctrines, when the same are taken and applied together; and of the supposed case of an act of Congress prohibiting the Supreme and Inferior Courts from declaring acts of Congress to be unconstitutional and void.

The court's doctrine in Juilliard v. Greenman, concerning the implied or constructive powers of Congress, and Mr. McMurtrie's doctrine, that the U. S. Supreme Court proceeds upon a purely implied power in declaring acts of Congress to be unconstitutional and void, when taken together, seem to undermine the foundations of the judicial power as hitherto understood.

According to its decision in the case of the State of Georgia v. Stanton, Grant and Pope (6 Wallace 50-78), the U. S. Supreme Court is competent to declare a questioned act of Congress to be unconstitutional and void in certain cases; namely, those in which the rights in danger are not merely political rights. In cases, in which the rights in danger are merely political rights, the court, by its own decision, is not competent to declare any act of Congress whatsoever to be unconstitutional and void.

Article 113 of the Swiss Federal constitution prescribes that the Federal Tribunal shall apply in all cases all laws enacted by the Federal Assembly. If, in admiration of such Swiss ideas, the U. S. Congress were to enact a statute prohibiting the Supreme and Inferior Courts from declaring any act of Congress in any case to be unconstitutional and void, it seems impossible to understand how such a statute would not be valid, supposing the doctrine in Juilliard v. Greenman and Mr. McMurtrie's doctrine to be both wholly correct. If they both be wholly correct, the power to enact such a law can not be expressly withheld, must be unknown in every other civilized country, and must be incidental to the express legislative powers of Congress, among which is

that of making all laws necessary and proper for carrying its other powers into execution.

Mr. McMurtrie maintains that the existence of a judicial power of declaring acts of Congress to be unconstitutional and void is ascertained solely by tacit implication and inference, is not expressly granted and is not expressly mentioned or expressly referred to in the constitution. It is clear, therefore, that such a power can not either be mentioned or referred to in any express text forbidding Congress to pass any law prohibiting the Supreme and Inferior Courts from exercising the same. A power of passing ex post facto laws is twice expressly mentioned in the constitution; once, in forbidding Congress, and again, in forbidding the states, to pass such laws. This shows, that it would be impossible to prohibit or withhold that or any other power expressly, without mentioning it expressly. The power of passing a statute prohibiting the exercise of judicial power as above supposed, cannot, therefore, be expressly withheld by the constitution.

Mr. McMurtrie furthermore maintains that a judicial power of declaring legislation to be void has always been unknown in any other country. Hence, it is clear that in all other countries, present or past, having constitutions of any sort or kind, the legislature of each government can or could bind the courts to obey and apply all its laws, and has or had, as incident to its legislative powers, the power of prohibiting the courts from declaring any law to be unconstitutional and void.

Recurring to the question raised by the case put, it is contended that the foregoing observations show that an affirmative answer should be given to it; that is to say, if the Supreme Court's doctrine and Mr. McMurtrie's be both wholly true, Congress has power to pass a law prohibiting the Supreme and Inferior Courts from declaring any act of Congress to be unconstitutional and void.

To make the evidence of the correctness of this answer to the question as complete as possible, it is requisite that the foregoing statements of the respective doctrines of the Supreme Court and Mr. McMurtrie should be verified by re

producing the actual language used by both. This will now be done.

No. 5.

Quotations from Mr. McMurtrie's Observations, showing his doctrine concerning judicial power.

Mr. McMurtrie's doctrine is found in the following passages from pages 13, 14 and 15 of his Observations:

"Let me ask, whence is derived this power that we are "now discussing, that of declaring void a legislative act? "Was such a political power ever heard of before? Did "any state before ever grant to its judicial functionaries the "power of declaring and enforcing the limits of its own. "sovereignty? What state before conferred on a court of “justice, in determining the rights of two suitors as a mere "incident, and without a hearing on behalf of the state, the "power to determine that its legislative acts, approved and "sanctioned by all its statesmen for thirty years, had al"ways been mere nullities-nullities ab initio?* But "granting this to be covered by the constitution, what are "we to say of the thirteen independent sovereignties who "thus surrendered to a tribunal they were to have no part "in constituting, the absolute and uncontrollable power of "deciding between themselves, and the power that appointed "the court? Is there any such grant in the constitution, "or any allusion to it? Since C. J. Marshall's judgment in Marbury v. Madison, I should have said, but for the facts "contradicting me, that no one probably has been able to "question that the power does not exist, and that it was "created by the constitution. But it is a mere deduction "of logic. Impossible (to my apprehension) for a sane "mind to question,† but still derived by tacit implication, "a process which one of the most conspicuous members of

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* These powerfully put observations make a most interesting contrast with Iredell's remarks on page 147 of Vol. 2 of his Life, being paragraphs 4, 5 and 6 of his paper reprinted in Chapter 26 of this Essay.

†The emphatic form of expression here used recalls Marshall's sentence on oaths of office at the end of the 1st paragraph of page 416 of 4 Wheaton, beginning: “Yet, he would be charged with insanity, who should contend,” etc.