"the Convention assured the most important of the com"munities that enacted the instrument, could not be a ground "for asserting a grant.

*

*

*

*

*

"It is certainly true that before the adoption of the "constitution Mr. Hamilton asserted this power was "placed with the Court, but he limited it to the determi"nation of the extent of the powers granted by the in"strument;* and if the makers of that instrument really "foresaw what they were doing, and the consequences in"volved, and yet left such questions to be determined as "they have done, with no provision for what might occur "while the legislation was undisputed, anything more, un"finished than their work can be scarcely mentioned. But "intended or not, is it not a power that is to be ascertained "to exist by reasoning, and reasoning only? Why is the "judiciary the only branch of government, whose views as "to the powers they possess by the grant, are to be regarded ? "If this be not implication and inference, and the exact "converse of an express grant, I am at a loss for a meaning "to these words.

"Therefore it seems to me plain that as it has been dem"onstrated for seventy years, and acquiesced in by all, "that one of the most important functions of the govern

ment, nothing less than a control over legislatures, execu"tives and the sovereignties which formed the United States, "has been created and lodged by inference, and by inference "only, in one branch of that government, uncontrollable "by the united powers of the imperial state and of the states which constituted the imperium, and this has been "done without any reference to the subject in the constitu"tion, and probably as to one branch of the subject (the "right to determine the illegality of state legislation), with"out any person concerned in the matter, seeing that it "had been done, is it impossible that other high powers may "be found to have been similarly granted?"

*This is understood to be an allusion to observations in the Federalist, which will be found on page 541 et. seq. of Dawson's edition.

In the foregoing it is, among other things, distinctly maintained:

(1). That the power of declaring legislation to be unconstitutional and noid has been created and lodged by inference, and by inference only, in one branch of the government, viz., the judicial:

(2). That there is no reference whatsoever to any such power in the text of the constitution:

(3). That no such exercise of judicial power has ever been heard of before in other civilized countries.

No. 6.

Quotations from the opinion in Juilliard v. Greenman, showing the Supreme Court's doctrine concerning legislative powers.

The language of the court, which it is necessary to quote, will be found on pages 447 and 449 of 110 U. S. Reports, and is as follows:

"It appears to us to follow, as a logical and necessary consequence, that Congress has the power to issue the ob"ligations of the United States in such form, and to impress "upon them such qualities as currency for the purchase of "merchandise and the payment of debts, as accord with the "usage of sovereign governments. The power, as incident "to the power of borrowing money and issuing bills or notes "of the Government for money borrowed, of impressing "upon those bills or notes the quality of being a legal ten"der for the payment of private debts, was a power univer"sally understood to belong to sovereignty, in Europe and "America, at the time of the framing and adoption of the "constitution of the United States. The governments of "Europe, acting through the monarch or the legislature, "according to the distribution of powers under their re"spective constitutions, had and have as sovereign a power "of issuing paper money as of stamping coin. This power "has been distinctly recognized in. an important modern "case, ably argued and fully considered, in which the Em"peror of Austria, as King of Hungary, obtained from the

"English Court of Chancery an injunction against the is"sue in England, without his license, of notes purporting "to be public paper money of Hungary. (Austria v. Day, "2 Giff. 628, and 3 D. F. and J. 217.) The power of issu"ing bills of credit. and making them, at the discretion of "the legislature, a tender in payment of private debts, had "long been exercised in this country by the several colonies "and states; and during the Revolutionary war the states, "upon the recommendation of the Congress of the Confed"eration, had made the bills issued by Congress a legal ten"der (see Craig v. Missouri, 4 Pet. 435, 453; Briscoe v. "Bank of Kentucky, 11 Pet. 257, 313, 334–336; Legal Ten"der Cases, 12 Wall. 557, 558, 622; Phillips on American "Paper Currency, passim). The exercise of this power not "being prohibited to Congress by the constitution, it is in"cluded in the power expressly granted to borrow money "on the credit of the United States.

"Congress, as the legislature of a sovereign nation, being "expressly empowered by the constitution to 'lay and col"lect taxes, to pay the debts and provide for the common "defence and general welfare of the United States,' and 'to "borrow money on the credit of the United States,' and

666

'to coin money and regulate the value thereof and of for"eign coin;' and being clearly authorized, as incidental "to the exercise of those great powers, to emit bills of "credit, to charter national banks, and to provide a na"tional currency for the whole people, in the form of coin, "treasury notes, and national bank bills; and the power to "make the notes of the Government a legal tender in pay"ment of private debts being one of the powers belonging "to sovereignty in other civilized nations, and not expressly "withheld from Congress by the constitution; we are irre

66

sistibly impelled to the conclusion that the impressing "upon the treasury notes of the United States the quality "of being a legal tender in payment of private debts is an "appropriate means, conducive and plainly adapted to the *110 U. S. Reports, p. 449.

"execution of the undoubted powers of Congress, consist"ent with the letter and spirit of the constitution, and "therefore, within the meaning of the instrument, 'nec"essary and proper for carrying into execution the powers "vested by this constitution in the Government of the "United States.""

No. 7.

A restatement of the consequences of both doctrines being wholly true.

If the doctrine concerning the constructive powers of Congress contained in the above quotations from the Supreme Court's opinion be true, and if the doctrine concerning judicial power contained in the foregoing quotations from Mr. McMurtrie's Observations be true, the series of propositions contained in the following six paragraphs A, B, C, D, E and F, must likewise be true as to the case above put, that is to say, the case of a law enacted by Congress prohibiting the Supreme and Inferior Courts from declaring any act of Congress to be unconstitutional and void. Previously to putting them before the reader, it is requisite to refer to parts of the opinion in McCulloch v. Maryland, found on pages 416, 417 and 418 of 4 Wheaton.

According to those parts of that decision, the following is law. Among the incidental powers belonging to Congress as a sovereign legislature is that of legislatively prescribing punishments for crimes in all rightful cases except the limited number of cases expressly mentioned in the constitutional text, which are those of treason, counterfeiting, piracy, felonies on the high seas and breaches of the law of nations. The magnitude of the incidental power of punishment inferred by Marshall in the cases of unexpressed crimes and misdemeanors is not greater than that of the incidental power of legislation inferred by the case put in the cases of endangered non-political rights. In the first instance the jurisdiction of the judiciary is enlarged, and in the second it is restricted, by the same means, namely, by inference.

The following proposition is asserted upon the authority of Chief Justice Marshall in the opinion of the court as aforesaid. It is therein distinctly laid down: (1), that the power of punishment exercised in the penal code of the United States in cases not expressed in the constitution is one appertaining to sovereignty; and (2), that whenever the sovereign can rightfully act, that power is incidental to the sovereign's constitutional powers. As examples of unexpressed cases in which the power is incidental, the following are specified: Stealing letters from postoffices, robbing the mails, perjury in U. S. courts, falsifying U. S. judicial records, and stealing such records.

It will be observed that the propositions contained in the following six paragraphs are expressed in language which adheres as closely as may be, mutatis mutandis, to the language of the Supreme Court in Juilliard v. Greenman.

A. By the constitution, Congress has expressly certain great legislative powers, among which is the power to make all laws which are necessary and proper for carrying into execution all the other powers vested in itself. These powers are sovereign powers and must be construed as such, according to the usages of sovereign legislatures and lawgivers at the time when the constitution of the United States was framed and adopted.

B. As incident to the sovereign powers of every legislature and lawgiver, the power of binding judicial courts to obey all laws and of prohibiting them from criticising any law and declaring it void, was a power, universally understood to belong to sovereignty in Europe and America, at the time of the framing and adoption of the constitution of the United States.

C. The governments of Europe acting through the monarch as lawgiver or a collective body as legislature according to the distribution of powers under their respective constitutions, had and have as sovereign a power of binding judicial courts by all laws and of prohibiting them from criticising any law and declaring it void, as of binding private individuals by all laws and of prohibiting them from disobeying the same under penalties of punishment.