CONGRESS, UNITED STATES. 



154 



. ,.,, Q j g . t t o..l j* * ,>~* JT, Tw^nt. -nrftbnblv submit to have their powers and 



of fact?" 



Mr. Drake : " Suppose it is not in point of 

 fact, who is to decide it? Not the courts." 



Mr. Edmunds: " Who, then?" 



Mr. Drake : " The people, sir, are to decide 

 it." 



Mr. Edmunds : " Revolution ? " 



Mr. Drake : " No, sir. The judicial power 

 does not contain political power, and no power 

 exists to unmake a law by declaring it invalid 

 but the power that made it. These points 1 

 touch upon merely." 



Mr. Doolittle : " I understand the honorable 

 Senator from Missouri simply to say that Con- 

 gress can do no wrong." 



Mr. Drake: "No, sir. The Senator from 

 Missouri does not say any such thing. But the 

 Senator from Missouri does say that a body 

 containing some three hundred men, many of 

 them the picked men of the nation, illustrious 

 many of them, far better lawyers, many of 

 them, than are on the bench of your Supreme 

 Court, are quite as competent to judge in a 

 matter of construction and deduction of con- 

 stitutionality as four or five gentlemen sitting 

 in another room in this Capitol who were never 

 set to be guardians over the judgment of Con- 

 gress." 



Mr. Edmunds, of Vermont, -said : " I wish to 

 put an inquiry to my friend, with a view to 

 get his idea in all sincerity. Suppose Congress 

 should pass a law which should declare that 

 the Supreme Court of the United States and 

 the circuit and district courts of the United 

 States should have no jurisdiction of contro- 

 versies arising between citizens of different 

 States, and, in spite of that law, a citizen of 

 the State of Missouri should sue a citizen of 

 the State of Vermont in the circuit court of 

 the United States for the district of Vermont, 

 would my friend maintain that it would be and if it is the degre e of its necessity, as has been 

 the duty of the judge presiding in that circuit V ery justly observed, is to be discussed in another 

 to dismiss that suit in spite of the Constitu- place. * * * Should Congress, in the execution 

 tion ? " of its powers, adopt measures which are prohibited 



Mr Drakp- "That iq thp samp dp^rmtion "by the Constitution, or should Congress, under the 



Mr. IM-ane . inat is tne same description retext O f executing its powers, passlaws for the ac- 

 of question put to me by the Senator from complishment of objects fnot intrusted to the Govern- 

 Indiana." ment, it would become the painful duty of this tri- 



Mr. Edmunds : " Very good. Answer mine." 



Mr. Drake : " It is supposing an impossi- 

 bility. I will not answer a question of that 

 kind, Mr. President, for the simple reason that 

 it supposes that which is impossible." 



Mr. Whyte, of Maryland, said : " Congress 

 passed an act known as the legal-tender act 

 some years ago, the constitutionality of which 

 is now pending before the Supremo Court of 

 the United States. May I ask the Senator 

 whether the decision of the Supreme Court in 

 that case ought to be respected, if it should de- 

 cide that law to be unconstitutional ? " 



Mr. Drake : " I answer, without hesitation, 

 not at all, sir. I stand to my position, and the 



Suppose it is not in point probably submit to have their powers and 



energies crippled by the decisions of that court 

 or some other United States court." 



Mr. Whyte: "I ask my friend from Mis- 

 souri how he will explain that section of the 

 Constitution, section two, article three, which 

 says: 



The judicial power shall extend to all cases in law 

 and equity arising under this Constitution, the laws 

 of the United States, and treaties made or which shall 

 be made under their authority." 



Mr. Drake : " I have no explanation to give 

 about it now, except simply to deny that the 

 judicial power of that court contains and in- 

 cludes political power. I deny that the right 

 to invalidate a law, to cripple it, to sweep it 

 off the statute-book, is or can be under any cir- 

 cumstances a judicial power. It is a political 

 power. At some future time, if opportunity 

 offer, I will, as I said before, present my views 

 at length on this whole subject." 



Mr. Davis, of Kentucky, said : " The honor- 

 able Senator having referred to me, will he 

 allow me to read a psssage from the opinion 

 of Chief- Justice Marshall in the case of McCul- 

 loch w. State of Maryland ? " 



Mr. Drake : " Sir, I am quite familiar with 

 that, I think." 



Mr. Davis : "I should like to put it in the 

 Senator's speech. Mr. President, let me read 

 the passage. I can show the honorable Sena- 

 tor to-morrow four acts of Congress that have 

 been declared by the Supreme Court to be un- 

 constitutional in their judgment. I will read 

 the passage to which I referred my honorable 

 friend in this opinion of Chief-Justice Marshall 

 in the case of McCulloch vs. Maryland : 



But, were its necessity less apparent, none can deny 

 its being an appropriate measure, 



" That is, the Bank of the United States- 



menu, ill wimiu. uecuuie mo paimui U.UUJT \j mio vn- 



bunal, should a case requiring such a decision come 

 before it, to say that such an act was not the law of 

 the land." 



Senate of the United States and the House of 

 Representatives of tne United States have both 

 got to come to it some time or other, or else 



Mr. Drake : " Yes, Mr. President, whenever 

 that court does assume to itself the power to 

 declare any act of Congress unconstitutional 

 and void, then begins the struggle for suprem- 

 acy in this country." 



Mr. Edmunds: "They have done so forty 

 years ago." 



Mr. Drake : " They have not done it forty 

 years ago. They have not interfered with the 

 administration of this Government. When- 

 ever they do, then the question will come up 

 whether the two Houses of Congress, in the 

 exercise of their high constitutional functions 

 as the embodiment of the sovereignty of this 

 great nation coming direct from the people, 



