No. 14.

General observations upon the class of cases contained in Part B. of the final paper in the Appendix to 131 U. S. Reports.

It is obvious from the great number and great importance of the cases in Part B., that there must be much utility in a further discussion of the constitutional relation of judicial power to unconstitutional legislation. The decisions of the Supreme Court upon federally unconstitutional state legislation alone, are sufficient for such a conclusion. This truth is proved over again by what has happened since the table of cases was published. Since then, the so-called original package decision of the Supreme Court has been made, and has caused an immense amount of discussion, both in the halls of Congress and throughout the United States.*

No. 15.

Conclusion from the foregoing review.

The foregoing review of the final paper in the Appendix to 131 U. S. Reports, it is contended, shows conclusively that that paper should be the beginning, and not the end, of a new discussion of the relation of judicial power to unconstitutional legislation according to the constitution of the United States. This important conclusion is drawn from the experience of a century. It is supported by the history of the constitution, as studied in the reports of cases before the judicial tribunal from whose decisions on constitutional questions there is no judicial appeal.

* Leisy v. Hardin, 135 U. S. Reports, 100.

CHAPTER III.

Of the second class of extraordinary reasons for fresh discussion of the subject.

No. 1. Of the case of Juilliard v. Greenman; of Mr. McMurtrie's defence of the decision therein; and of his doctrine as to the exercise of judicial power in declaring legislation to be unconstitutional and void.

No. 2. Of the doctrine of the opinion in Juilliard v. Greenman, concerning the constructive or implied powers of Congress.

No. 3. Of the rigorous exercise of such powers of Congress according to the said doctrine.

No. 4. Of the effect of the two foregoing doctrines, wher the same are taken and applied together; and of a supposed case of an act of Congress prohibiting the Supreme and Inferior Courts from declaring any act of Congress to be unconstitutional and so void.

No. 5. Quotations from Mr. McMurtrie's Observations showing his doctrine concerning judicial power.

No. 6. Quotations from the opinion in Juilliard v. Greenman, showing the Supreme Court's doctrine concerning legislative powers.

No. 7. Of the consequences of both doctrines being true. No. 8. That the foregoing considerations prove the existence of a second class of extraordinary reasons for a fresh discussion of the subject of this Essay.

This chapter will be devoted to the second class of extraordinary reasons for a fresh discussion of the subject. They are derived from a part only, and a recent part, of the judicial history of the constitution.

No. 1.

Of the case of Juilliard v. Greenman; of Mr. McMurtrie's defence of the decision therein; and of his doctrine as to the exercise of judicial power in declaring legislation to be unconstitutional and void.

The second class of the said reasons is concerned with but one decision of the Supreme Court and has its origin in it and the controversy caused by it. This decision is that made in the case of Juilliard v. Greenman in 110 U. S. Reports, 421-470. The case is the last of the celebrated legal tender litigations, but the part of the opinion of the court herein specially concerned is that which lays down a general doctrine relating to the constructive or implied powers of Congress.

In Juilliard v. Greenman* the U. S. Supreme Court decided, inter alia, that Congress in its discretion had power to make U. S. bills of credit a legal tender in payment of all debts. Mr. Bancroft, in February, 1886, published an important essay in adverse criticism of the decision of the court. In the autumn of 1886, Mr. McMurtrie published a learned answer to Mr. Bancroft's criticisms, containing a defence of that decision and also his own views of the legal tender question. The differences between the historian and the jurist are grave, both as to conclusions and methods of reaching them.

The following are the titles of these important essays: "A Plea for the Constitution of the United States of "America wounded in the House of its Guardians. By "George Bancroft." New York, 1886.

Plea for the Supreme Court. Observations on Mr. "George Bancroft's Plea for the Constitution. By Richard "C. McMurtrie." Philadelphia, 1886.

The writer's study of the opinion of the Supreme Court and Mr. McMurtrie's defence thereof, has resulted in a conviction that, great as is the importance of the legal tender

* 110 U. S. Reports, 421-470. Decided March 3d, 1884. Reported under the name of "Legal Tender Case, Juilliard v. Greenman."

question, another and still greater one has become involved in the controversy. That question relates to the competency of the U. S. Supreme Court to decide a legal tender act or any other act of Congress to be unconstitutional and to hold that the same is void, if the opinion in the case of Juilliard v. Greenman be law as to the constructive powers of Congress. The decision of the court might anyhow suggest a re-study of the grounds of its exercise of judicial power in this respect. Mr. McMurtrie's essay has, however, directly re-opened the whole of that subject; and in this wise. Persons denying the power of making greenbacks a legal tender, are reproached by him with thorough inconsistency. He contends that they maintain that the court should declare the legal tender laws to be void, on the ground that the legal tender power is based exclusively on implication and inference; that in so doing they at the same time ignore that the court's power of "declaring void a legislative act" is based exclusively on implication and inference; and that the judicial power of so declaring was never heard of, before tacit implication and inference originated in this country.

This doctrine, coming from a jurist of so high a rank, can not be ignored. Its scope is vast; for, if true, it applies to all questions of constructive powers in Congress, and not merely to the one in debate. It amounts to a warning to every lawyer, in every case, to take heed how he argue that the court should decide against any claim of constructive legislative power in Congress, for the judicial power of the court itself only constructively extends to cases involving any such questions at all.

The gravity of this doctrine is such that it must be disposed of in some way, either by refutation, or limitation, or precise ascertainment; otherwise, the discussion, of most constitutional questions may be embarrassed, by its being vouched at any moment.

The presentation of this doctrine is certainly a very serious move on the logical chessboard of any legal controversy concerning the implication of a legislative power. If the existence of the judicial competency under discussion de

pended solely upon implication, it would have to be answered by a move different from that which the writer will make. His view is that the constitution provides for such a judicial competency in express terms and he will proceed accordingly.

The connection of Mr. McMurtrie's doctrine as to the exercise of judicial power in declaring legislation unconstitutional and void, with the doctrine of the U. S. Supreme Court in Juilliard v. Greenman concerning the constructive powers of Congress, makes the matter a very extraordinary one in point of law. It is true that Mr. McMurtrie makes no allusion to any connection between these two doctrines. He may, perhaps, admit no connection between them. To the writer's conviction, however, the connection is intimate and remarkable, and so, most important.

The doctrine of Juilliard v. Greenman upon the constructive powers of Congress will now be examined.

No. 2.

Of the doctrine of the opinion in Juilliard v. Greenman concerning the constructive or implied powers of Con

gress.

In the case of Juilliard v. Greenman* the U. S. Supreme Court, in its decision, proceeded upon a certain general doctrine therein laid down, concerning the relation of the powers of Congress to the powers belonging to sovereignty in other civilized nations, which the national legislatures thereof habitually exercise. According to this doctrine, it follows as a legal and necessary consequence of the expressly granted powers of Congress that it has constructively, as incidental thereto, all the powers which the national legislatures of foreign sovereign and civilized governments have and use, as incidental to powers identical with the express powers aforesaid; provided only that such constructive powers are not "prohibited" to Congress by the constitution. The same doctrine holds that Congress, as the legislature of a sovereign nation, has certain great *110 U. S. Reports, 421.