Nathaniel Hillyer. Egleston.

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and by them. They must, in the words of Chief-Justice
Marshall, " consist with the letter and spirit of the Constitution "
(4 W. 421). But they are not capable of more precise- descrip
tion than that of the Constitution, " necessary and proper."

Of the enumerated powers, Chief -Justice Marshall says :

"This Government is acknowledged by all to be one of enumerated powers.
The principle that it can exercise only the powers granted to it, would seem
too apparent to have been required to be enforced by all those arguments
which its enlightened friends, while it was depending before the people,
found it necessary to urge. The principle is now universally admitted." (4 W.



These enumerated powers are called by Chief-Justice Mar
shall "great substantive and independent powers' 7 (4 W. 411).
They are substantive, because each is complete in itself. They
are independent, because each is created by its own specification,
and has its specified function, and is efficient for nothing else.

The power of making money is required for making paper
money, as well as for making coin money. And the court im
plies that abstract power from the enumerated powers " to pay
debts," " to borrow money/ 7 " to lay and collect taxes"; and to
these powers it adds the power to " coin money. 7 ' But " to coin
money ?7 is expressly to make money of coin, and cannot further
the implication of anything else. The claim of the court, there
fore, must rest on the other powers specified.

Now the power to make money is not a power to use or
apply money. And the mere abstract power of making money,
as contradistinguished from the power of using it or applying
it, cannot serve or tend to pay debts. Therefore the abstract
power of making money is not involved in, and cannot be im
plied from, the enumerated power " to pay debts/ 7 which re
quires only the use and application of money, and authorizes
nothing else. The two powers differ as the manufacture of an
ax differs from cutting down trees with it.

Neither can the abstract power to make money tend or serve to
execute the power " to borrow money/ 7 for this does not contem
plate even the use or application of money, but contemplates only
the procurement of money from other people. Therefore the ab
stract power of making money is not involved in, and cannot be
implied from, the power to borrow money. For like reasons the
abstract power of making money cannot tend or serve to execute
the enumerated power to lay and collect taxes ; for this contem
plates and involves only an order and assessment on othe^r people
to pay money due from them.

Individuals have no power to make their paper legal money.
Yet they pay their debts and borrow money and collect their
dues, because for these things the abstract power of making
money is not required, or is not, in the words of the Constitution,
" the necessary and proper 7? means. If the abstract power of
making money is not involved in the enumerated powers speci
fied, and cannot be implied from them, then the court, in fact,
uses those powers as the means of executing the power to make
money. And this the law forbids. Chief- Justice Marshall says


of the enumerated powers, that they " cannot be implied as
incidental to other powers, or used as a means of executing
them " (4 W. 411). And the reason is that heretofore stated,
viz., that each of the enumerated powers has its specified func
tion, and is efficient for nothing else.

According to this opinion, Congress has two distinct and dif
ferent powers of making money ; one expressed in the words, " to
coin money/ 7 the other the power to make money of paper,
which it implies from the enumerated powers it specifies. It
terms these " analagous " powers. But this is to add a power
to the enumerated powers, which the law forbids. As Chief-
Justice Marshall says, " the government is acknowledged by all
to be one of enumerated powers." If Congress could add to
these any one power, it could add any others, and thus pervert
our government to one of unlimited powers, all vested in Con
gress. The opinion of the court cites the following words of
Chief -Justice Marshall : " We admit, as all must admit, that the
powers of the government are limited, and that its limits are not
to be transcended (4 W. 421).

When the Constitution was formed, the people of the United
States held all sovereign powers, and among them the power to
say of what the money of the country should consist. They
could have conferred this power as they held it, and vested it in
its entirety in Congress. But this they did not do, and instead
they conferred on Congress the power " to coin money/ 7 which
is the only power to make money specified in the Constitution.
Here the power and the means for executing it are both specified
in the same word, " coin. 77 This manifests the intent that the
power and the means of executing it should be inseparable. To
separate them by substituting other means, as paper for coin,
would not, in the words of Chief -Justice Marshall, " consist
with the letter an,d spirit of the Constitution " (4 W. 421), but
would violate both. All of a power that can be conveyed is the
use of it ; and the specification of one use precludes the impli
cation of any other. Expressum facit cessare taciturn.

From the nature of powers, every grant of a specified power
is a limitation of that power, in the same way and for the same
reason that a grant of an estate is, in the accurate language
of the common law, a limitation of that estate. And every
limitation of a power is a prohibition to transcend it j for, if it
had not that effect, it would not be a limitation. The natural


language of a limited power is, " Thus far shalt thou go and no
further n ; and every limited power covers and disposes of the
whole subject to which it relates, for it confers authority to its
extent that is, up to the line it draws and excludes
authority from all beyond it; for both of these effects are
involved in its limiting effect. Then the Constitution is a unit,
and its articles and sections constitute one instrument, and, like
a statute, it is to be so construed as to be consistent with itself,
and each part with all the rest. Therefore, what is expressly
prohibited in one part of the instrument cannot be implied from
any other part, and what is expressly limited in one part can
not be implied without the limitation from any other part of the

If that is admitted which never was denied viz., first,
that the power of Congress "to coin money 77 is a limited
power ; secondly, that the Constitution is one instrument, and
must be so construed as to be consistent with itself, and each
part with all the rest then it would seem to be a logical con
sequence that by the specification " to coin money" Congress is
positively excluded from any further power of making money
at all.

The opinion of the court claims support from the usages
of foreign governments and the Confederated States of this
country. It says as follows :

" The governments of Europe, acting through the monarch or the legis
lature, according to the distribution of powers under their respective Consti
tutions, had and have as sovereign a power of issuing paper money as of
stamping coin. . . . The power of issuing 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 recom
mendation of the Congress of the Confederation, had made the bills issued
by Congress a legal tender. The exercise of this power not being prohibited
to Congress by the Constitution, it is included in the power expressly granted
to borrow money on the credit of the United States/'

But the foreign governments referred to, and the Confeder
ated States, were sovereign powers. Each held, in its own right,
all the powers of sovereignty, and among them the sovereign
power of prescribing in what the money of its people should
consist. But under our Constitution Congress is no more


sovereign than the judiciary, or the executive. Each is but the
officer of the sovereign, and can exercise only the power con
ferred on it. Neither acquires, or can use, any power simply
because it is not prohibited to it. This is the difference always
recognized between the English national legislature and our own.
In England the sovereign belongs to Parliament, which is com
posed of King, Lords, and Commons, and thus the sovereign is
a party to all its acts. Therefore, Parliament may do whatever
it is not prohibited from doing, while Congress can only do that
which it is authorized to do, because in Congress there is neither
sovereign nor sovereignty. Under our Constitution there is no
sovereign, in the proper meaning of that word, i. e., an authority
with full sovereign powers. The Constitution did not, as the
opinion claims, create " a national sovereignty " ; but " the
national sovereignty," the people of the United States, created
the Constitution, and by it divided all sovereign powers be
tween the United States and the several States, so that the
former had only the powers conferred on them, and the latter
only the powers reserved to them. Chief -Justice Marshall says :

' ' In America the powers of sovereignty are divided between the govern
ment of the Union and those of the States. They are each sovereign with
respect to the objects committed to it, and neither is sovereign with respect to
the objects committed to the other." (4= Wheaton, 410.)

On this authority Congress has only the power conferred on it,
and it has not that sovereignty which, including all sovereign
powers, enabled foreign governments, and the Confederated
States, to make paper money.

The opinion of the court purports to provide means for the
government. But these are expressly provided by the powers
" to lay and collect taxes, duties, imposts, and excises," and u to
borrow money" $ while the power "to coin money " is given to
secure an honest and safe money for the business of the people,
and the maintenance of public credit. The u Federalist" said :

"The loss which America has sustained from the pestilent effects
of paper money on the necessary confidence between man and man;
on the necessary confidence in the public councils ; on the industry and
morals of the people; and on the character of republican government,
constitutes an enormous debt against the States chargeable with this unad
vised measure ; or, rather an accumulation of guilt, which can be expiated
no otherwise than by a voluntary sacrifice on the altar of justice, of the
power which has been the instrument of it."


In the case of the United States et al. vs. Lee (106 U. S.
Bs. 196), the action was ejectment for the recovery of the Ar
lington estate. At the entry of the action in the Circuit Court,
the Attorney-General filed a suggestion that for many years the
premises had been in the possession of the United States, with
claim of title, and appropriated to public uses ; and he objected
to the jurisdiction of the court, and prayed that all proceedings
be dismissed. To this suggestion a demurrer was filed and sus
tained. At the trial the defendant claimed under a sale to the
United States. Under the instruction of the court, the jury
found the sale to have been illegal and void ; and returned a ver
dict for the plaintiff, on which judgment was rendered. The case
was then carried on writs of error to the Supreme Court of the
United States, where the judgment of the court below was
affirmed by a majority of five against a minority of four of the
justices. The minority of the court sustained the objections
taken by the Attorney-General, and stated their reasons as
follows :

" The principles upon which we are of opinion that the court below had
no authority to try the question of the validity of the title of the United
States in this action, and that this court has therefore no authority to pass
on that question, may be briefly stated. The sovereign is not liable to be
sued in any judicial tribunal without its consent. The sovereign cannot hold
property except by agents. To maintain an action for the recovery of
possession of property held by the sovereign, through its agents, not claim
ing any title or right in themselves, but only as the representatives of the
sovereign, and in its behalf, is to maintain an action to recover possession of
the property against the sovereign ; and to invade such possession of the agents
by execution or other judicial process is to invade the possession of the
sovereign and to violate the fundamental maxim that the sovereign cannot
be sued. .... These principles appear to us to be axioms of public
law." (P. 226.)

The possession of the sovereign by his officers is as unas
sailable here as it is in England. But from the difference in
the institutions of the two countries, their laws differ as to what
is the possession of the sovereign ; and therefore as to that the
decisions in either country cannot be authorities in the other.
In England the national sovereignty is in " the wearer of the
crown" 5 that is, in the person of the king, " in whom the majesty
of the public resides." His officers in their official action repre
sent his personal authority, as an attorney represents the per
sonal authority of his principal. And thus the official posses-


sion of the officer, whether lawful or unlawful, is the posses
sion of the king, which cannot be legally inquired into, because
u the sovereign cannot be sued."

In this country we have no personal sovereign, but instead, a
supreme authority vested in the People of the United States.
This authority is impersonal, and incapable of personal repre
sentation. Its will is declared only by the law. Hence the
phrase and the fact that ours is a government of law. And as
no one can be the agent of the law for anything unlawful, it
follows that the sovereign, the People of the United States,
cannot be made a party to any transaction by the illegal act of
any of their officers. So that any violation of law by an officer
is his unauthorized and unofficial act, for which he is liable

The dissenting opinion does not dispute the opinion of the
court, that the sale of the land was illegal. Then it divested no
title from the plaintiff, and vested none in the People of the
United States, who were not, and could not be made, a party to
the illegal action of their officers. The possession of Kaufman
and Strong, therefore, was not official, and was not the possession
of the sovereign, but their own personal possession. And as it
barred the plaintiff from his legal rights, it was a violation of
law, for which they were liable as individuals. In their opinion
the court said, " The case before us is a suit against Strong and
Kaufman, as individuals, to recover possession of property. 77
And they cited four previous cases, in which the court main
tained its jurisdiction over actions of ejectment brought against
officers holding lands under the government, viz., Meigs vs.
M'Lungs, lessee, 9 Branch, 11 ; Wolcox vs. Jackson, 13 Peters,
498 j Brown vs. Huger, 21 How, 305, and Grizar vs. M'Dowell, 6
Wall, 363.

The rules which the dissenting opinion claims to be authori
tative here as " axioms of public law " belong to the municipal
law of England. They are the relics of the earliest and rudest
times of its feudal law, when its purpose was to maintain power,
and not to administer rights. Under it the Norman Kings
depopulated districts to make forests for the royal hunting-
grounds. The subject whose land was taken had no redress but
that petition which belongs to the relation of sovereign and sub
ject, and which the king might grant or refuse. And so is the


letter of the English law to-day ; for under the statute 23 and 24
Victoria, if the queen refuses to grant her fiat, then, in the words
of the dissenting opinion, " the suppliant is without remedy."
(P. 235.)

The modern reason for the rule is that the sovereign should
decide whether the subject's suit for injury done him may con
sist with the public interests. But the result is, that in feudal
England private property may be taken for public use without
compensation 5 while in other countries, from the earliest times,
jurists have held it to be a rule of " universal law" that private
property could not be taken for public use, without compensa
tion. The civil law established the principle in ancient Rome,
and has since extended it over continental Europe. Our Consti
tution adopted it from the civilization of its time, and it belonged
to Eastern civilization. For when the Moors first established
themselves in the Spanish cities, they proclaimed as their law,
for Moslem and Christian, that private property taken for public
use should be paid for.

The reasons of the minority for concurring in the decision of
the four previous cases in ejectment, and for non-concurring in
the decision of the Arlington case, are stated as follows :

" The view on which this court appears to have constantly acted, which
reconciles all its decisions and is in accord with the English authorities is
this : the objection to the exercise of jurisdiction over the sovereign or his
property is in the nature of a personal objection, which if not suggested by
the sovereign may be presumed not to be insisted on," etc. (P. 249.)

But exemption from suit is the sovereign's normal state. It
is the incident of his sovereignty, and as absolute as that. It is
not conditioned on objections to be made by him, and they can
not be required of him ; and whenever it appears, either by the
record or the evidence, that the suit is in legal effect against the
sovereign, the objection to the suit is the want of jurisdiction in
the court, and that is not " in the nature of a personal objection,"
but one the court must take notice of, and which bars its further

Jurisdiction over the United States is not a subject for pre
sumption, for it can be created only by an act of Congress.
Chief -Justice Marshall said, in the voice of the court :

" As the United States are not suable of common right, the party who
institutes such a suit must bring his case within the authority of some act of
Congress, or the court cannot exercise jurisdiction over it." (S. Peters,


If jurisdiction over the sovereign depends upon an act of
Congress, then in all cases the action of the court and of the
Attorney-General must be irrelevant to it.

The opinion of the majority of the court in the Arlington
case maintains the law as previously held. But the division on
the bench, of four against five, brings uncertainty into the
future, and makes the protection of the citizen against official
power and wrong weaker than it was before.



CONTEMPORARY criticism will have it that, in order to create
an American Literature, we must use American materials. The
term " Literature w has, no doubt, come to be employed in a
loose sense. The London " Saturday Review " has (or used to
have until lately) a monthly two-column article devoted to what
is called "American Literature," three-fourths of which were
devoted to an examination of volumes of State Histories,
Statistical Digests, Records of the Census, and other such
works as were never, before or since, suspected of being litera
ture ; while the remaining fourth mentioned the titles (occasion
ally with a line' of comment) of whatever productions were at
hand in the way of essays, novels, and poetry. This would
seem to indicate that we may have nay, are already possessed
of an American Literature, composed of American materials,
provided only that we consent to adopt the " Saturday Review V ;
conception of what literature is.

Many of us believe, however, that the essays, the novels, and
the poetry, as well as the statistical digests, ought to go to the
making up of a national literature. It has been discovered,
however, that the existence of the former does not depend, to
the same extent as that of the latter, upon the employment of
exclusively American material. A book about the census, if it
be not American, is nothing ; but a poem or a romance, though
written by a native-born American, who, perhaps, has never
crossed the Atlantic, not only may, but frequently does, have
nothing in it that can be called essentially American, except its
English and, occasionally, its ideas. And the question arises
whether such productions can justly be held to form component
parts of what shall hereafter be recognized as the literature of



How was it with the makers of English literature f Begin
ning with Chaucer, his " Canterbury Pilgrims " is English, both
in scene and character; it is even mentioned of the Abbess
that "Frenche of Paris was to her unknowne"; but his
" Legende of Goode Women" might, so far as its subject-matter
is concerned, have been written by a French, a Spanish, or an
Italian Chaucer, just as well as by the British Daniel. Spenser's
"Faerie Queene" numbers Saint George and King Arthur
among its heroes j but its scene is laid in Faerie Lande, if it be
laid anywhere, and it is a bare-faced moral allegory throughout.
Shakespeare wrote thirty-seven plays, the elimination of which
from English literature would undeniably be a serious loss to it ;
yet, of these plays twenty-three have entirely foreign scenes and
characters. Milton, as a political writer, was English j but his
" Paradise Lost and Regained," his " Samson/ 7 his " Ode on the
Nativity," his " Comus," bear no reference to the land of his
birth. Dryden's best-known work to-day is his " Alexander's
Feast.' 7 Pope has come down to us as the translator of Homer.
Richardson, Fielding, Smollett, and Sterne are the great quartet
of English novelists of the last century j but Smollett, in his pref
ace to " Roderick Random," after an admiring, allusion to the
"Gil Bias" of Le Sage, goes on to say : " The following sheets I
have modeled on his plan " ; and Sterne was always talking and
thinking about Cervantes, and comparing himself to the great
Spaniard : " I think there is more laughable humor, with an
equal degree of Cervantic satire, if not more, than in the last,"
he writes to " my witty widow, Mrs. F." Many even of
Walter Scott's romances are un-English in their elements j and
the fame of Shelley, Keats, and Byron rests entirely upon their
"foreign" work. Coleridge's poetry and philosophy bear no
technical stamp of nationality ; and, to come down to later
times, Carlyle was profoundly imbued with Germanism, while
the " Romola " of George Eliot and the " Cloister and the
Hearth" of Charles Reade are by many considered to be the
best of their works. In the above hasty enumeration innumerable
instances in point are, of course, omitted; but enough have
been given, perhaps, to show that imaginative writers have not
generally been disowned by their country on the ground that
they have availed themselves, in their writings, of other scenes
and characters than those of their own ''immediate neighbor

VOL. cxxxix. NO. 333. 12


The statistics of the work of the foremost American writers
could easily be shown to be much more strongly imbued with
the specific flavor of their environment. Benjamin Franklin,
though he was an author before the United States existed, was
American to the marrow. The u Leather-Stocking Tales/' of
Cooper are the American epic. Irving's " Knickerbocker," and
his " "Woolf ert's Roost " will long outlast his other productions.
Poe's most popular tale, li The Gold-Bug," is American in its
scene, and so is " The Mystery of Marie Roget," in spite of its
French nomenclature ; and all that he wrote is strongly tinged
with the native hue of his strange genius. Longfellow's " Evange-
line" and u Hiawatha' 7 and "Miles Standish," and such poems
as " The Skeleton in Armor " and " The Building of the Ship,"
crowd out of sight his graceful translations and adaptations.
Emerson is the veritable American eagle of our literature, so
that to be Emersonian is to be American. Whittier and Holmes
have never looked beyond their native boundaries, and Haw

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 16 of 60)