I Am Jur 2d ACTIONS

§ 50. Actions contrary to public policy and practical considerations.

It does not follow, from the general statement that there is no wrong without a remedy, that a remedy is always obtainable in the courts." Indeed, it is not sufficient for the maintenance of an action to remedy a supposed wrong that a technical right of action exists, unless it is at the same time practical, and in the interest of sound government to permit the action to prevail." Practical considerations must at times determine the bounds of correlative lights and duties and the point beyond which the courts will decline to impose legal liability." Thus, because of their legal unity, actions between husband and wife were ordinarily barred at common law;" and considerations of public policy forbid the bringing of actions against the state or its subdivisions, except with its consent." The maxim that there is no wrong without a remedy is not applicable to acts which the written law has declared to be rightful, especially things not malum in se, authorized by a valid act of the legislature and performed with due care and skill in strict conformity with the provisions of the act. Public policy also forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.

§ 51. Actions based upon plaintiffs' wrongful, illegal, or immoral acts or conduct.

The principle which precludes an action based upon the plaintiffs wrongful, immoral, or illegal act applies where both plaintiff and defendant were parties to such act; there may be time's when the objection that the plaintiff has broker the law may sound ill in the mouth of the defendant, yet, as a general rule under the doctrine of in pari delicto, no action will lie to recover on a claim based upon or in any manner depending upon a fraudulent, illegal, or immoral transaction or contract to which the plaintiff was a party. If

14. Shearman v Folland (Eng) [1950] 2 KB 43, 18 ALR2d 652.

15. Pacific Steam Whaling Co. v United States, 187 US 447, 47 L ed 253, 23 S Ct 154.

16. Robertson v New Orleans & G. N. R. Co. 138 Miss 24, 129 So 100, 69 ALR 1180.

17. Comstock v Wilson, 257 NY 231, 177 NE 431, 76 ALR 676.

18. See husband AND, Wife (Ist ed 1584).

19. See STATES, Territories, and Dependencies (Ist Ed J 91).

20. Pietch v Milbrath, 123 Wis 647, 101 NW 388,102 NW 342.

1. Frazer v Chicago, 186 111 480, 57 NE 1055.

2. Totten v United States, 92 US 105, 23 L ed 605.

3. Miller v Miller (Ky) 296 SW2d 684, 65

4. Robenson, v Yann, 224 Ky 56, 5 SW2d 271; Piechowak v Bissell, 305 Mich 486, 9 NW2d 685.

5. Davis v Brown, 94 US 423, 24 L ed 204; Union Bank v Stafford, 12 How (US) 327, 13 L ed 1008; Watts v Malatesta, 262 NY 80 186 NE 210, 88 ALR 1072; Riggs v Kimer, 115 NY 506, 22 NE 188; Byers v Byers, 223 NC 85, 25 SE2d 466; Merit v Losey, 194 Or 89, 240 P2d 933; Smith v Germania F. Ins Co. 102 Or 569, 202 P 1088, 19 ALR 1444; Slater v Slater, 365 Pa 321, 74 A2d 179; Langley v Devlin, 95 Wash 171, 163 P 395, 4 ALR 32.

Hyams v Stuart King (1908] 2 KB (Eng) 696 (CA).

6. Finnie v Walker (CA2) 257 F 698, 5 ALR 831.

7. The Florida (Collins v The Florida) 101 US 37, 25 L ed 898; Hunter v Wheate, 53 App, DC 206, 289 F 604, 31 ALR 980; Western U. Teleg. Co. v McLaurin, 108 M'ss 273, 66 So 739; Pennington v Todd, 47 NJ Eq

8. Standard Oil Co. v Clark (CA2 NY)

163 F2d 917, cert den 333 US 873, 92 L ed 1149, 68 S Ct 901, 902.

9. Falconi v Federal Deposit Ins. Corp. (CA3

Pa) 257 F2d 287.

There is no recorded instance where a court of law or of equity has given aid or comfort to one wrongdoer against his fellow wrongdoer seeking a division of the loot. Piechowiak v Bissell, 305 Mich 486, 9 NW2d 685.

10. Capps v Postal Teleg.-Cable Co. 197 miss 118, 19 So2d 491 -- Desmet_-V Sublett. 54 NM 355, 225 P2d 141; Lloyd v North Carolina. R. Co.. 151 NC-5313, . 66 SE 604;.Stevens v Hallmark (Tex Civ App) 109 SW 2d 1106.

11. Picture Plays Theatre Co. v Williams, 75 Fla 556, 78 So 674, 1 ALR 1; D. I. Felsenthal Co. v Northern Assur. Co. 284 111 343, 120 NE 268, 1 ALR 602; Baltimore & 0. S. W. R. Co. v Evans. 169 Ind 410, 82 NE 773.

12. Talbot v Seeman, I Cranch (US) 1, 2 L ed 15.

13. Levy v Kansas City (CA8) 168 F 524; Newton v Illinois Oil Co. 316 111 416, 147 NE 465, 40 ALR 1200.

14. Boylston Bottling Co. v O'Neill, 231 Mass 498, 121 NE 411, 2 ALR 902; Woodson v Hopkins, 85 Miss 171, 37 So 1000, 38 So 298; Buck v Albee, 26 Vt 184; Lemon v Grosskopf, 22 Wis 447. Annotalion: 2 ALR 906.

15. Hill v Freeman, 73 Ala 200; Monatt v Parker, 30 La Ann 585; Otis v Freeman, 199 Mass 160, 85 NE 168; Platt v Elias, 186 NY 374, 79 NE 1; Denton v English, I I SCL (2 Nott & M'C) 581; Lanham v Meadows, 7 2 W Vz 610, 78 SE 750.

16. Western U. Teleg. Co. v McLarvin, 10: Miss 273, 66 So 739.

17. Grapico Bottling Co. v Ennis, 140 Nl' 502, 106 So 97, 44 ALR 124.

18. Hunter v Wheate, 53 App DC 206, 2: F 604, 31 ALR 980; Kearney v Webb, 27 111 17, 115 NE 844, 3 ALR 1631; Re Brown 147 Kan 395, 76 P2d 857, 116 ALR 101 (holding that such rule does not apply when the one complained of is an official of the court, who seeks to retain to his own uncertain moneys he acquired by his official mis-conduct); BowIan-v-Lumford,-I76 Okla 11, 54 P2d 666 (plaintiff attempting to recover damages from a man who induced her to submit to a operation which produced a abortion where she was of full age and voluntarily consented to the operation) ; Gulf, C. & F. R. Co. v Johnson, 71 Tex 619, 9 SW 60A court will not extend aid to either of the parties to a criminal act or listen to the complaints against each other, but will leave them where their own act has placed them Stone v Freeman, 298 NY 268, 82 NE' 571, 8 ALR2d 304.

19. Ring v Spina (CA2 NY) 148 F2d 6, 160 ALR 371; Reilly v Clyne, 27 Ariz 43 234 P 35, 40 ALR 1005; Berka v Woodwar 125 Cal 119, 57 P 777; Western U. Tel. C v Yopst, 118 Ind 248, 20 NE 222; Grapi Bottling Co v Ennis, 140 Miss 502, 106 97, 44 ALk 124; Short v Bullion-Beck C. Min. Co. 20 Utah 20, 57 P 720; Rolle Murray, 112 Va 780, 72 SE 665. Major v Canadian P. R. Co. 51 Ont L R 370, 67 DLR 341, affd 64 Can SC 367, DLR 242,

That which one promises to give for illegal or immoral consideration he cant be compelled to give, and that which he given on such a consideration he cannot cover. Platt v Elias 186 NY 374,

commonplace maxim that where parties are equally in wrong the courts will not give one legal redress against the other but will leave them where it finds them.' Neither law nor equity interferes to relieve either of the persons who engage in fraudulent transactions, against the other from the consequences of their own mis-conducts

Some courts have applied the rule in pari delicto to transactions with a public officer or an official of the court,' but most take the position that the rule does not apply to prevent maintenance of an action against public officers for the recovery of money acquired by official misconduct

However, illegality is no defense when merely collateral to the cause of action sued on; one offender against the law cannot set up as a defense to an action the fact that plaintiff was also an offender, unless the parties were engaged in the same illegal transaction. It is only in such a case that the maxim, "in pari delicto potior est conditio defendentis et possidentis," applies, and not even then when the plaintiffs unlawful participation was innocent, being induced by the fraud of the defendant on which the action is based! Nor will a plaintiff be barred of his action against the defendant by the fact that he has done a wrong to a third person. Moreover, courts will grant relief against present wrongs and to enforce existing rights, although the property involved was acquired by some past illegal act.4 It is generally agreed, although there is authority to the contrary," that one who has entrusted another with money or property for an illegal use or purpose may maintain an action to recover such property or money so long as it has not been used by the person to whom it was given.

There can be no recovery as between the parties on a contract made in violation of a statute, the violation of which is prohibited by a penalty, although the statute does riot pronounce the contract void or expressly prohibit the same. Sanclage v Studebaker Bros. Mfg. Co. 142 Ind 148, 41 NE 380. .

Although a man may contract that a future event may come to pass over which he has no, or only a limited power, including contracts for the conveyance of land that he does not own, an agreement that no its face requires an illegal act, either of the contractor or a third person, no more imposts a liability to damages for nonperformance than it creates an equity to compel the contractor to perform. Sage v Hampe, 235 US 99, 59 L ed 147, 35 S Ct 94.

20. Ford v Caspers (CA7 111) 128 F2d 884Duncan v Dazey, 318 111 500, 149 NE 495'

1. Clark v United States, 102 US 322, 26 L ed 181; Re Brown's Estate, 147 Kan 395, 76 P2d 857, 116 AER 1012; Smith v Smith, 68 Ney 10, 226 P2d 279.

Annotation: 116 ALR 1018.

2. Ford v Caspers (CA7 111) 128 F2d 884.

3. Annotation: 116 ALR 1019, 1023.

4. Re Sylvester, 195 Iowa 1329, 192 NW 442, 30 ALR 180; Re Brown's Estate, 147 Kan 395, 76 P2d 857. 116 ALR 1012; Perman v Coakley, 243 Mass 348, 137 NE 667, 26 ALR 92.

Annotation: 116 ALR 1021-1031.

A. IN GENERAL

In considering- the nature of any government, it must be remembered that the power existing in every body politic is an absolute despotism; in constituting a government, the body politic distributes that power as it pleases and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries. The natural and necessary distribution of that power, with respect to individual security is into legislative, executive, and judicial departments. It is obvious, however, that every community may make a perfect or imperfect separation and distribution of that power at its will.

5. Loughran v Loughran, 292 US 216, 78 L ed 1219, 54 S Ct 684, reh den 292 US 615, 78 L ed 1474, 54 S Ct 861.

6. Wallace v Cannon, 38 Ga 199.

7. Doe ex dem. Hutchinson v Horn, I Ind 363; jekshewitz v Groswald, 265 Mass 413, 164 NE 609, 62 ALR 525; Cooper v Cooper, 147 Mass 370, 17 NE 892; Sears v Wegner, 150 Mich 388, 114 NW 224; Blossom v Barrett, 37 NY 424; Morrill v Palmer, 69 Vt 1, 33 A 829; Pollock v Sullivan, 53 Vt 507.

This principle is particularly applicable in actions for deceit in inducing unlawful cohabitation by representations of a lawful marriage. See Annotation: 72 ALR2d 956.

6. Langley v Devlin, 95 Wash 171, 163 P 395, 4 ALR 32; Matta v Katsoulas,'192 Wis 212, 212 NW 261, 50 ALR 291.

9 * Loughran v Loughran, 292 US 216, 78 L ed 1219, 54 S Ct 684, reh den 292 us 615, 78 L cd 1474, 54 S Ct 861.

10. Lancaster v Ames, 103 Me 87, 68 A 533; Stone v Freeman, 298 NY 268, 82 NE2d 571. 8 ALR2d 304.

Annotation: 8 ALR2d 314, 13; 316, 14.

11. Okeechobee County v Nuveen (CA5 Fla) 145 F2cl 684, cert den 324 US 881, 89 L ed 1432, 65 S Ct 1028; Kearney v Webb, 278 111 17, 115 NE 844, 3 ALR 1631; Ware v Spinney, 76 Kan 289, 91 P 787~

Annotation: 8 ALR2d 312, 13; 317, 15.

17. Halter v Nebraska, 205 US 31, 51 1, rd 696, 27 S Ct 419; Colurnbus Packing Co v State, 100 Ohio St 2115, 126 NE 291. 29 ALR 1429, ovrld on another point 106 Ohio St 469, 140 NE 376. 37 ALR 1525; State v Peet. 80 Vt 449, 68 A 661; State ex rel. Jarvis v Daggett, 87 Wash 253, 151 P 648.

Absent congressional action the test is that of uniformity against locality; more accurately, the question is whether the state interest is outweighed by a national interest. California v Zook, 336 US 725, 93 L ed 1005. 69 S Ct 841, reh den 337 US 921, 93 L ed 1729. 69 S Ct 1152.

The right of the several states to enact legislation during the silence of Congress has been recognized in respect to such subjects as insolvency. See INSOLVENCY (Ist ed 8)

-the regulation of dealers in patented articles. See PATENTS (Ist ed 8).

--the recital of the consideration of notes given for the price of patent rights. Woods v Carl, 203 US 358, 51 L cd 219, 27 S Ct 99.

-the prohibition for the use of the United States flag for advertising purposes. Halter v Nebraska, 205 US 34. 51 L ed 696, 27 S Ct 419, affg 74 Neb 757, 105 NW 298.

-the establishment of quarantine regulations. See HEALTH (I st ed § 7).

-regulations with regard to the speed of railroad trains. See RAILROADS.

- regulations with regard to rates of transportation between points within the boundaries of a state. See PUBLIC UTILITIES.

- the erection of bridges, dams, and other structures constituting obstructions to navigation or otherwise pertaining to navigation. See HIGHWAYS, STREETS, AND BRIDGES (Ist ed. BRIDGES I I); WATERS.

- pilotage. See SHIPPING.

18. Morvan's L. & T. R. & S_ S. Co. v Board of Health, 118 US 455, 30 L ed 237, 6 S Ct 1114.

19. Mayo v United States, 319 US 411, 87 L ed 1504. 63 S Ct 1137. 1-17 ALR 761, reh den 320 US 010, 08 L ed 489, 6.1 S Ct 27.

1. Compagnic Francaise de Nav. a Vapeur v State BD of health, 186 US 380, 46 L cd 1209, 22 S Ct 8 It.

And see 9 150, SUPM

2. Livingston v Moore, 7 Pet (US) 469, 8 L cd 751 (per Johnson, J.).

A characteristic feature, and one of the cardinal and fundamental principles, of the American constitutional system is that the governmental powers are divided among the three departments of government, the legislative, executive, and judicial, and that each of these is separate from the others. The principle of separation of the powers of government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to the judiciary.4 We are not a parliamentary government in which the executive branch is also part of the legislature

It has been said that the object of the Federal Constitution was to establish three great departments of government: the legislative, the executive, and the judicial departments. The first was to pass the laws, the second, to approve and execute them, and the third, to expound and enforce them. And since the constitutional distribution of the powers of government was made on the assumption by the people that the several departments would be equally careful to L3e the powers granted for the public good alone, the doctrine is generally accepted that none of the several departments is subordinates but that all are co-ordinate independent, coequal, and potentially coextensive. The rule is generally recognized that constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another; officers of any branch of the government may not usurp or exercise the powers of either of the others, and, as a general rule, one branch of government cannot permit its powers to be exercised by another branch.

Frequently, there appears in a state constitution an express division of the powers of government among the three departments;" and all persons charged

3. Trybuiski v Bellows Falls Hydro-Electric Corp. 112 Vt 1, 20 A2d 117.

4. Bloemer v, Turner, 281 Ky 832, 137 SW 2d 387.

5. O'Donoghue Y United States, 289 US 516 77 L ed 1356 53 S Ct 740; Springer v Philippine Islands, ~77 US 189, 72 L ed 845, 48 S, Ct 480; J. W. Hampton &Co. V United States, 276 US 394, 72 L ed 624, 48 S Ct 348; Evans v Gore, 253 US 245, 64 L ed 887, 40 S Ct 551, It ALR 519; Kilbourn v Thompson, 103 US 168, 26 L ed 377; Fox v McDonald, 101 Ala 51 , 13 So 416; Hawkins v Governor, 1 Ark 570- Denver v Lynch, 92 Colo 102 18 P2d 907, 86 ALR 907; Stockman v Leddy 55 Colo 24, 129 P 220; Norwalk Street R. bo.'s Appeal, 69 Conn 576, 37 A 1080, 38 A 708; Florida Nat. Bank of Jacksonville v Simpson (Fla) 59 So 2d 751, 33 ALR2d 581; Burnett v Green, 97 Fla 1007, 122 So 570, 69 ALR 244; Re Speer, 53 Idaho 293 23 P2d 239, 88 ALR 1086; People v Keliy, 347 111221, 179 NE 898, 80 ALR 890; People ex rel. Rusch v White, 334 111 465, 166 NE 100, 64 ALR 1006; Greenfield v Russcl, 292 111 392, 127 NE 102, 9 ALR 1334; Ellingliant v Dye 178 Ind 336, 99 NE 1, error district 231 US 250, 58 L ed 206, 34 S Ct 92; Overshiner v State, 156 Ind 187, 59 NE 468; Parker v State. 135 Ind 534, 35 NE 179; State v Barker, 116 Iowa 96, 89 NW 204; Harris v Allegany County, 130 Md 488, 100 A 733; Opinion of justices, 279 Man 607 ' 180 NE 725, 81 ALIX 1059; Anway v Grand Rapids R. Co. 211 Mich 592, 179 NW 350, 12 ALIX 26; People v Dickerson, 164 Mich 148, 129 NW 199;*Veto Case, 69 Mont 325, 222 P '2,%35 ALR 592; Searle v Yensen, 118 Neb 835 26 NW 464 69 ALR 257; Tyson v Washington County, ~8 Neb 211, 110 NW 634; Saratoga Springs v Saratoga Gas, E. L. & P. Co. 191 NY 123, 83 NE 693; State ex rel. Atty.-Cen. v Knight, 169 NC 333, 85 SE 418; Re Minneapolis, St. P. & S. Ste. M. R. Co. 30 ND 221, 152 NW 513; State v Blaisdell, 22 ND 86, 132 NW 769; Riley v Carter, 165 Okla 262, 25. P2d 666, 88 ALR 1018; Simpson v Hill, 128 Okla 269, 263 P 635, 56 ALR 706; Baskin v State, 107 Okla 272, 232 P 301, 40 ALR 941; Wilson v Philadelphia School Dist. 328 Pa 225. 195 A 90, 113 ALR 140 1; State ex rel. Richards v Whisman, 36 SD 260, 154 NW '707, error dismd 241 US 643, 60 L ed 1218 36 S Ct 449Langever v Miller, 124 TQ 80, 76 SW24 1025 36 ALR 836; Trimmier v Carlton, 116 Test '572 1 296 SW 1070; Peterson v Grayce Oil Co. (Tex Civ App) 37 SW2d 367, affif 128 Tex 550 98 SW2d 781 - Kimball v GrantsVille City, 5 Utah 368 5V P 1; Sabre v Rutland R. Co. 86 Vt 34~, 85 A 693; State v Huber, 129 W Va 198, 40 SE2d 11, 168 ALR BOB- State v Thompson. 149 Wit 488, 137 N;W'20.

Annotations 3 ALR 451; 69 ALR 266.

The theory of our government is one at separation of powers. Att. Gen. ex rel. Cook v O'Neill, 280 Mich 649, 274 NW 445.

Our constitution and fabric of government divide governmental powers into three grand divisions and prohibit the assumption by those exercising the powers of one of them of the just powers of another. Butler v Printing Comrs. 68 W Va 493, 70 SE 119.

See State v Bates, 96 Minn 110, 104 NW 709, for & good discussion of the source of the doctrine of the separation of the powers of government.

6. Norwalk Street R. Co.'s Appeal 69 Conn 576, 37 A 1080, 38 A 708; State v Wirmoth. 22 La Ann 1; McCrea v ' Roberts, 89 Md 238, 43 A 39; Wright v Wnight, 2 Md 429; Wenharn v State, 65 Neb 394, 91 NW 421; Henry v Cherry, 30 RI 13, 73 A 97; State v Fleming. 7 Humph (Tenn) 152.

Annotation: 69 ALR 266.

Neither the legislative, neither executive, nor judicial department of the federal government can lawfully exercise any authority beyond the limits marked out by the Constitution. Scott v Sandford, 19 How (US) 393, 15 L ed 691.

7. People v Tremaine, 281 NY 1. 21 NE2d 891.

8. Martin v Hunter, I Wheat (US) 304, 4 L cd 97.

The difference between the departments is that the legislature makes, the executive executes and the judiciary construes, the law; but le maker of the law may commit something to the discretion of the other departments. Wayman v Southard, 10 Wheat (US) 1. 6 L ed 253.

9. Halt v State, 55 Ohio St 210, 45 NE 199; Blalock v Johnston, 100 SC 40, 185 SE 61, 105 ALR 1115.

10: 1213, Infra.

The United States Supreme Court has said that so far as their powers are derived from the Constitution the departments may be regarded as independent of each other, but beyond that all are subject to regulations by law touching upon the discharge of duties required to be performed. Evans v Gore, 253 US 245, 64 L ed 687, 40 S Ct 550, 11 ALR 519; Kendall v United States, 12 Pet (US) 524, 9 L ed 1181; People v McCullough, 254 111 9, 98 NE 156.

11. Humphrey v United States, 295 US 602, 79 L ed 1611, 55 S Ct 069.

12. Per Marshall, Ch. J., Osborn v Bank of United States, 9 Wheat (US) 730, 6 L ed 204.

13. Snodgrass v State, 67 Tex Crim 615, 150 SW 162.

By reason of the distribution of powers under a constitution, assigning to the legislature and the judiciary each its separate and distinct functions, one department is not permitted to trench upon the functions and powers of the other. State ex rel. Bushman v Vandenberg, 203 Or 326, 276 P2d 432, 280 P2d 344.

14. State ex rel. Du 'Fresne v Leslie, 100 Mont 449, 50 P2d 959, 101 ALR 1329; state V Fabbri, 98 Wash 207. 167 P 133.

15. Any fundamental or basic power necessary to government cannot be delegated. Wilson v Philadelphia School Dist. 328 Pa 225, 195 A 90,113 ALR 1401.

16. As to whether the Federal Constitution requires departmental separation of state governmental powers, see 1215. infra.

17. Porter v Investors' Syndicate, 207 US 34.6, 77 L cd 354, 53 S Ct 132 (Montana Constitution); Abbott v McNutt, 2 1 o Cal 225, 22 P2d 510, C9 ALR 1109: Re Battcllc, 207 Cal 227, 277 P 725. 63 ALR 1497; Denver v Lynch, 92 Colo 102 18 P2d 907, 86 ALR 907; Stockman v Leday, 53 Colo 24, 129 P 220; Burnett v Greene, 97 Fla 1007, 122 So 570, 69 ALR 244; State v Atlantic Coast Line R. Co. 36 Fla 617, 47 So 969; Re Speer, 53 Halto 293, 23 P2d 2.19, fla ALR IOC6; Winter v Barrett. 352 111 4-11, In6 NE 113,. 89 ALR 1398; People v Kelly, 347 111 221, 179 NE 890, 00 ALR C90; People ex rel. R,tsch v White, 334 111 465, 16G NE 100. 64 ALR 1006: State v Shumaker. 200 Ind 716, IG4 NE 409, 63 ALR 218: State v Barker, 116 lowa 06, C9 NIV 204; Rouse v Johnson, 234 Ky 473, 20 SW2d 745, 70 ALR 1077; Stat., ex rel. Young v butler, 105 Me 91, 73 A 560; Harris v Allegany County, .130 Md 400, 100 A 733; Re Opinion of Justices, 279 Mass 607, 180 NE 723, 01 ALR 1059; American State Bank v .Jones, 104 Minn 493, 239 NW 144, 78 ALR 770; University of Mississippi v Watigh. 105 Miss 623, 62 So 827, affd 237 US 589, 59 L ed 1131, 35 S Ct 720: State v J. J. Newman Lumber Co. 102 Mim 802, 59 So 923; State ex rel. Hadley v Wa%hburn, 167 Mo 680, 67 SW 592; State v Field. 17 Mo 529; Searle v Yensen, 118 Neb 835, 226 NW 464, 69 ALR 257; Follmer v State, 94 Neb 217, 142 NW 908; Tyson v Washington County, 78 Neb 211, 110 NW 634; State v Roy, 40 NM 397, 60 P2d 616, 110 ALR 1, State ex rel. Duhrk v Watland, 51 ND 710, 201 NW 680, 39 ALR 1169; Riley v Carter, 165 Okla 262, 25 P2d 666, 83 ALR join; Simpson v Hill, 128 Okla 269, 263 P 635, 56 ALIX 706; Hopper v Oklahoma County, 43 Okla 280, 143 P 4; Macartney v Shipherd, 60 Or 133, 117 P 814; State v George, 22 Or 142, 29 P 356; Biggs v McBride, 17 Or 640, 21 P 878; Langevcr v Miller, 124-Tex 00, 76 SW2d 1025, 96 ALR 8.16; Union Cent. L. Ins. Co. v Chowning, C6 Tex 654, 26 SW 902; State v Mounts, 36 W Va 179, 14 SE 007; Public Serv. Com. v Grimshaw, 49 Wyo 150, 53 P2d 1, 109 ALR 534. See also State ex rcl. Dushek v Wntland, 51 ND 710, 201 NW 600, 39 ALR 1169.

79. 6 Am Jur 2d CONSTITUTIONAL LAW 211

with official duties under one of the departments may be forbidden from exercising any of the functions of another except as expressly permitted by the constitution itself." A state constitutional provision that no person belonging to one department shall exercise the powers properly belonging to another is to be strictly applied." The constitution may, however, make it a duty for officers of one department of the government to assist in the functions of another department, and laws passed in furtherance of such acts are not violative of the doctrine of separation of powers."

A constitutional requirement with respect to the separation of the three departments of the government which exists in i state constitution is generally held to refer to the state government and state officers, and not to the government of municipal corporations or their officers.

80. CONSTITUTIONAL LAW 16 Am Jur 2d

On the other hand, in the Federal Constitution and in a few of the state constitutions, no specific provision is made for a separation of governmental powers. Under these constitutions, however, and even under the constitutions in which such a clause has actually been inserted, irrespective of the existence of such a distributing clause, it is held that the creation of the three departments may operate as an apportionment of the different classes of powers, It has been said that where the provision that the legislative, executive, and judicial powers shall be preserved separate and distinct is not found in a constitution in terms, it may exist there, in substance in the organization and distribution of the powers of the department. The basis of this theory is that the distribution of the powers of the state by the constitution to the legislative, executive, and judicial departments operates by implication as an inhibition against the imposition upon any one department of' such powers which distinctively belong to one of the other departments. Thus, it has been said that grants of legislative, executive, and judicial powers of the three departments of government are, in their nature, exclusive, and that no department, as such, can rightfully exercise any of the functions necessarily belonging to the other. It has also been said that the mere apportionment of sovereign powers among the three coordinate branches of the government, without more, imposes upon each of those branches the affirmative duty of exercising its own peculiar powers for itself, and prohibits the delegation of any of those powers, except in cases expressly permitted.

A distributive clause in a state constitution prevents the exercise of the functions of one departriient of the government by another department, but has no relation to the exercise or division of the powers of one particular branch of the government by the officers who comprise that branch and does not control the question as to which one of several executive officers should perform an executive function.'

It has been said the principle of the separation of the powers of government is fundamental to the very existance of constitutional government as-

The origin of a constitutional provision decreeing a separation of powers is very well known. It first found expression, at least with clarity and precision, in the writings Of Montesquieu, with which the members of the Federal constitutional Convention of 1787 were familiar, early appeared in the organic laws of some of the states, and was adopted as a basic principle in the Constitution of the United States in 1787, from which it entered into the constitutions of nearly all of the states, including that of Texas, both as a republic and as a state. Langever v Milkr, 124 80, 76 SW2d 1023, 96 ALR 836.

18. Porter v Investors' Syndicate, 287 US 346, 77 L ed 354, 53 S Ct 132 (Montana Constitution); Montgomery v State. 231 Ala 1. 163 So 365, 101 ALR 1391; Hawkins v Governor, I Ark 570; Abbott v McNutt, 218 Cal 225, 22 P2d 510, 89 ALR 1109; Re Bat. telle, 207 Cal 227, 277 P 725, 63 ALR 1497; Denver v Lynch, 92 Colo 102. 18 P2d 907t 66 ALR 907; Stockman v Lcddy, 55 Colo 24, 129 P 220; Florida Nat. Bank of Jacksonville V Simpson (Fin) 59 So 2d 751, 33 ALR2d 5 8 1 ; Burnett v Greene, 97 Fla 1007. 122 So 570, 69 ALR 244; Singleton v State, 38 Fla 297, 21 So 21; Re Speer, 53 Idaho 293, 23 P 2d 239, 88 ALR 1086; Winter v Barrett, 352 111 441, 186 NE 113, 89 ALR 1398; Pco. ple v Kelly, 347 111 221. 179 NF 898, go ALR 890; Fergus v Marks, 321 111 310, 152 NE 557, 46 ALR 960; State v Shumakcr, 200 Ind 716, 164 NE 4001, 63 ALIX 218; State v Noble, 118 Ind 350, 21 NE 244, Rouse V Johnson, 234 Ky 473, 28 SW2d 745, ?0 ALR 1077; Re Dennelt, 32 Me 508; Harris v Al. legany County, 130 Md 488, 100 A 733- Re Opinion of Justices, 279 Mau 607, 180'NE 725, 81 ALR 1059; American State Bank v Jones, 104 Mine, 498, 239 NW 144, 78 ALR 770; State ex rel. Hadley Y Washburn, 167 Me 680, 67 SW 592; Searle v Yensen, 118 Neb 835, 226 NW 46.1, 69 ALR 2157Fellmer v State, 94 Nth 217, 142 NW 908-' State v Roy, 40 NM 397, 60 P2d 646, ll~ ATIR 1: Riley v Carter, 165 Okla 262. 25 P2d 666, V ALR 1010; Simpson v Hill, 128 Okla 269, 263 P 635, 56 ALR 706; Hopper v Oklahoma County. 43 Okla 200. 143 P 4; Union Cent. L. Ins. Co. v Chowning, 86 Tex 654, 26 SW 982; Kimball v Grantsville City, 19 Utah 368. 37 P 1; Public Serv. Com. V Grinishaw, 49 Wye 158, 53 P2d 1. 109 ALR 534.

Annotation: 69 ALR 266, 267; 89 ALR 1115; 79 L cd 476.

A state constitutional provision that no person or group of persons charged with the exercise of powers properly belonging to one of the departments of government shall exercise any power properly belonging to either of the others establishes a government of laws in. stead (if a government of men, a government in which laws authorized to be made by the legislative branch are equally binding upon all citizens, including public officers and employees. Springfield v Clouse, 356 Mo 1239, 206 SW2d 539.

The plain meaning of state constitutional provisions declaring that neither of the three departments of government shall exercise powers properly belonging to either of the others, and that no person shall exercise the, powers of more than one of them at the same time, is that no judge of any court can act as a member of the legislature or fill an executive office, and that no member of the legislature or any official of the executive department can fill a judicial office State V Huber, 129 W Va 198, 40 SE2d 11, 163 ALR 808.

19. Transport Workers Union. etc. Y Gadola. 322 Mich 332, 34 NW2d 71.

20. A statute requiring the governor to secure the introduction into the legislature of budget bills prepared by the budget commission and cause amendments to be presented it desirable, during the passage of the bill is not invalid on, the theory that it attempts to confer power on the governor and budget commission to dictate the introduction of bills in the legislature, where the constitution makes it the governor's duty to recommend for the consideration of the legislature such measures as he may deem expedient, and also makes it the duty of the officials who constitute the budget commission to prepare a general revenue bill to be presented to the house of representatives by the governor. Taylor v Davis, 2121 Ala 202, 102 So 433, 40 ALR 1052.

Poynter v Walling (Del) 177 A2d 641; Sarits Y State, 201 Ind 88, 166 NE 270, 67 ALR 718 (statute providing commission and city manager forms of governments, for cities); State v Mankato, 117 Minn 458, 136 NW 264; Bamcs v Kirksville, 266 Me 270, 180 SW 543; State v Neble, 82 Neb 267, 117 NW 723; Greenville Y Prichnore. 86 SC 442, 68 SE 636; Walker v Spokane, 62 wash 312, 113 P 775.

Annotation: 67 ALR 740.

2. Springer v Philippine Islands, 277 US 189, 72 L ed 845, 48 S Ct 480.

Annotation: 79 L ed 476.

3. Re Sims, 54 Kan 1, 37 P 135 (Kansas Constitution). Ohio, for another example. has no Rpe,ifie Constitutional provision for a separation of powers.

4. Springer v Phil;rnime Islands, 2 77 (IS I S9, 72 L ed 045, 48 S Ct 400 (Federal Constitil. 60111); State V Brill. 100 Minn 499. 111 NW 432 Ile Tel. & Tel. Zanesville v Z3ne3,i 294, 6390;hio St 67, 59 NE 781; Kimball V S.ra.nlis4ville City, 19 Utah 368, 57 P 1. The doctrine of separation of powers arises not from any single provision of the Federal C-nstitution but because behind the words of the constitutional provisions are postulates which limit and control. National Mut. Ins. Co. Y Tidewater Transfer Co. 337 US 582. 93 Led 1556, 69 5 Ct 1173.

S. Zanesville v Zanesville Tel. & Tel. Co. 64 Ohio St 67, 59 NE 781. Is. State ex rel. Mason v Baker, 69 ND 488. 20e NW 202.

7. Reelfoot Lake Levei- Dist. v Dawson, 97 Tevirs 151o 36 SW 1041, ovrld on another Poi-,t Arnold v Knoxville, 115 Tenn 195, 90 SW 469. a State ex rel. KostAs V Johnson, 224 Ind 51o, 69 NE2d 592 1611 ALR 1118; Follmcr v State. 94 Ncls 21i. 142 NW 908.

81. 16 Am Jur 2d CONSTITUTIONAL LAW

established in the United States. The principle has also been referred to as one of the chief merits of the American system of written constitutions. It has been declared that the division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. One of America's most distinguished jurists has stated that no maxim has been more universally received and cherished as a vital principle of freedom."

Although there may be a blending of powers in certain respects, in a broad sense the of our institutions depends in no small degree on the strict observance of the independence of the several departments; Each constitutes a check upon the exercise of its power by any of its power by any other departments, and, accordingly, a concentration of power in the hands of one person or class is prevented, and a commingling of essentially different powers in the same hands is precluded. No arbitrary and unlimited power is vested in any departments, such power is regarded as a condition subversive of the constitution, and the chief characteristic and evil of tyrannical and despotic forms of government.

9. National Mut. Ins. Co. v Tidewater Transfer Co. 337 US 582, 93 L ed 1556, 69 5 Ct 1173; Norwalk Street R. Co's Appeal, 69 Conn 576, 37 A 1080, 30 A 708; People ex rel. Leaf v Orvis, 374 111 536, 30 NE2d 28, 132 ALR 1382. cert den 312 US 705, 85 L ed 1138, 61 S Ct 827; Tyson v Washington County, 78 Neb 211, 110 NW 634; Enterprise v State, 156 Or 623, 69 P2d 953; Langever v Miller, 124 Tex 80, 76 SW2d 1025, 96 ALR 836. It is necessary, if government is to function constitutionally, for each of the repositories of constitutional power to keep within its power. Rescue Army v Municipal Court of Los Angeles, 331 US 549, 91 L ed 1666, 67 S Ct 1409.

10. O'Donoghue v United States, 289 US 516, 77 L ed 1356, 53 S Ct 740; Kilbourn v Thompson, 103 US 168, 26 L ed 377; People V Brady, 40 Cal 198; State v Brill, 100 Allinn 499, 111 NW 294, 639; Searle v Yensen, 118 Neb 835. 226 NW 464, 69 ALR 257; Enterprise v State, 156 Or 623, 69 P2d 953.

11. Searle v Yensen. 118 Neb 835. 226 NW 464, 69 ALR 257; Enterprise v State, 156 Or 623, 69 P2d 953 (quoting the famous declaration of Montesquieu that "there can he no liberty . . . if the power of judcing be not separated from the legislative and executive powers").

12. Tucker v State, 218 Ind 614, 35 NE2d 270.

13. Tucker v State, supra; Dearborn Twp. v Dail, 334 Mich 673, 55 NW2d 201.

14. Dash v Van KIceck, 7 Johns (NY) 477 (per Kent, Ch. J.).

15. 1214, infra.

16. McCray v United States, 19,' ' _ .., 49 1. cd 711, 24 S Ct 769: Powell v Pennsylvania, 127 US 678, 32 L ed 253, 8 S Ct 99?, 1257; Killwtirn v Thompson, 10:1 US MR, 26 L cd 377; Sinking Fund Cases, 99 US 700, 25 L ed 496; Lincoln Federal Labor Union v Northwestern Iron & Metal Co. 149 Nw 507, 31 NW2d 477, Wenharn v State, 65 Nth 394, 91 NW 421; Ex parte Kair, 28 Nev 127, 425, 80 P 40, 82 P 453; State ex rel. Schorr v Kennedy. 132 Ohio St 510, 9 NE2d 278, 110 ALR 1428; State ex rel. Bushman v Vandenberg, 203 Or 326, 276 P2d 432, 280 P2d 344; Enterprise v State, 156 Or 623, 69 P2d 953; U'Ren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173; State v Peel Splint Coal Co. 36 W Va 802,15 SE 1000. The preservation of the inherent powers of the three branches of government, free from encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of constitutional rule. Simmons v State, 160 Fla 626, 36 So 2d 207. As to the independence of the separate departments, we J 213, infra.

17. Greenwood Cemetery Land Co. v Routt 17 Colo 156, 28 P 1125; Re Davies, 168 NY 89.61 NE 118.

18. State v Denny, 118 Ind 382, 21 NE 252; Enterprise v State, 156 Or 623, 69 P2d 953; De Chastellust v Fairchild, 15 Pa 18.

By the mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority. United Public Workers v Mitchell, 330 US 75, 91 L ed 754, 67 S Ct 556. .

The primary purpose of the doctrine of separation of powers is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government. Parker v Riley, 10 Cal 2d 83, 113 P2d 873, 134 ALR 1405.

19. O'Donoghue v United States, 289 US 516, 77 1. ed 1356, 53 S Ct 740.

It is particularly essential that the respective branches of the government keep within the powers assigned to each by the constitution.

Lichter v United States 334 US 742, 92 L ed 1694, 68 S Ct 1294, reh den 335 US 836, 93 L ed 389, 69 S Ct 11.

Separation of powers is not a mere matter of convenience or of governmental mechanism, but its object is basic and vital, namely, to preclude a commingling of the essentially different powers of government in the same hands. State ex rel, Black v Burch, 226 Ind 445, 80 NE2d 294, 560, 81 NE2d 850.

20. State ex rel. Davis v Stuart, 97 Fla 69 120 So 335, 64 ALR 1307.

1. Sinking Fund Cases, 99 US 700, 25 L ed 496; McPherson v State, 174 Ind 60, 90 NE 610; State v Johnson, 6i Kan 803, 60 P 1068.

2. State v Barker, 116 Iowa 96, 89 NW 204; State v Johnson, 61 Kan 803, 60 P 1068 State v Brill? 100 Missis 499, 111 NW 294, 639; Enterprise v Stale. 156 Or 623, 69 P2d 953.

3. Wright v Wright, 2 Md 429; De Chastellux v Fairchild, 15 Pa 18; Ekern v McGovern, 154 Wis 157, 142 NW 595; State ex rel. Mueller v Thompson, 149 Wis 488. 137 NW A81 NE2d 850.

4. Fox v McDonald, 101 Ala 51, 13 So 416, White County v Gwin 136 Ind 562, 36 NE 237; State v Denny, 118 Ind 382 21 NE 252; State v Noble, 118 Ind 350, 21 NE 244, State v Doherty, 23 la Ann 119; McCuIIy v State. 102 Tenn 509, 53 SW 134.

5. Montgomery v State, 231 Ala 1, 163 So 365, 101 ALR 1394; Hawkins v Governor, 1 Ark 570; Denver v Lynch, 92 Colo 102, 18 P2d 907, 86 ALR 907; People ex rel. Billings

v Bissell, 19 111 229; Wright v Wright, 2 Md 429; Re Opinion of justices, 279 Mass 607, 180 NE 725, 81 ALR 1059; State v Blaisdell 22 ND 86- 132 NW 769; McCully v State 102 Tenn ~09, 53 SW 134; Langever v Miller, 124 Tea 00, 76 SW2d 1025, 35 ALR 836; Kimball v Grantsville City, 19 Utah 368, 57 P 1; State ex rcl. Mueller v Thompson, 149 W6 488, 137 NW 20.

6. Humphrey v United States, 295 US 602, 79 L cd 1611, 55 S Ct 869; O'Donoghue v United States, 289 US 516, 77 L ed 1356, 53 S Ct 740; Parsons v Tuolomne Couniy Water Co. 5

cal 43; State v Atlantic Coast Line R Co. 56 Fla 617, 47 So 969; People v Bissell, 19 111 229; Blalock v Johnston, 180 SC 40. 185 SE 51. 105 ALR 1113; Langever v Miller, 124 Tex 80, 76 SW2d 1025, 96 ALR 836;,Christie v Lueth 265_yis 326, 61 NW2d 338. Each department should be kept completely independent of the others, independent not in the sense that they &hall not co-operate in the common end of carrying into effect the purpose of the constitution, but in the sense that the acts of each &hall never be controlled by, or subjected to, directly or in directly, the coercive influence of either of the other departments

Annotation: 153 ALR 522

7. State v Shumaker, 200 Ind 716, 164 NE 408, 63 ALR 218

When a written constitution provides for e separation of powers of government be three major branches, it is presumed to intend that within the scope of their constitutionally conferred fields of activities the three separate departments of government are to be independent, subject, of course to any limitations upon this presumption found in the clear and express provisions of the constitution itself. Du Pont v Du Pont (Sup) 32 Del Ch 413, 85 A2d 724.

Black v Burch, 226 Ind 445. 80 NE2d 294, 560,

8. Renck v Superior Court of Maricopa Couaty, 66 Aria 320, 127 P2d 656.

§ 219. Generally C. JUDICIAL POWERS

The power to maintain a judicial department is an incident to the sovereignty of each state-' Under the doctrine of the separation of the powers of government,' judicial power, as distinguished from executive and legislative power, is vested in the courts as a separate magistracy.4

The judiciary is an independent department of the state and of the federal government, deriving none of its judicial power from either of the other departments. This is true although the legislature may create courts under the provisions of the constitution. When a court is created, the judicial power is conferred by the constitution and not by the act creating the court. It was said at an early period in American law that the judicial power in every well-organized government ought to be coextensive with the legislative power so far, at least, as private rights are to be enforced by judicial proceedings. The rule is now well settled that under the various state governments, the constitution confers on the judicial department all the authority neccessary to exercise powers as a co-ordinate department of the government. Moreover, the independence of the judiciary is the means provided for maintaining the supremacy of the constitution.

In a general way the courts possess the entire body of judicial power. The other departments cannot, as a general rule, properly assume to exercise any part of this power, nor can the constitutional courts be hampered or limited in the discharge of their functions by either of the other two branches.

1. Discussed at this point is the judicial power in its constitutional relationship to the other powers of government. A broad discussion of judicial Power, generally, will be found in the article, COURTS.

2. Hoxie v New York, N. H & H. R. Co. 82 Cone 352, 73 A 754.

3. 12 10, supra.

4. bryonjack v State Bar, 200 Cal 439, 291 P K, IS, 66 ALR 1507; Norwalk Street R. Co s appeal ' 69 Conn 576, 37 A 10110. 38 A 708: Brown v O'Connell. 36 Conn 432; Burnett v Green, 97 Fla 1007. !22 So 570. 69 ALR 244- Ex parte Earroan. 85 Fla 297. 95 So 755, 31 ALR 1126; State v Shomaker, 200 Ind 623, 157 Nr 769. 162 NF 441, 163 NE 272, 50 ALR 954; State v Denny, 118 Ind 382, 21 NE 1.52; Flournoy v Jeffersonville. 17 Ind b9: opinion of Justices, 279 Mass 607 11JU NE 725 ' 81 ALR 1059; American State bank v Jones, 1114 Mina 490, 239 NW 144. 78 ALR 770.

5. Brown v O'Connell, 16 Conn 432; Norwalk Street R Co's Appeal. 69 Conn 576, 37 A 1030, 38 A 703; Parker v State, 135 Ind 534, 35 NE 179; Opinion of Justices, 279 Mass 607, 180 NE 723. 81 ALR 1059.

6. Kendall v United States. 12 Pet (US) 524,9 Led 1181.

7. Opinion of justices, 279 Man 607, 180 NE 725. 81 ALR 1509.

8. Riley , Carter, 165 Okla 262, 25 P2d 666. 88 ALR 1018.

9. State v Noble. 118 Ind 350, 21 NE 244; Attorney General ex rel. Cook ~ O'Neill, 280 Mich 649, 274 NW 445; Washington- Detroit Theatre Co. v Moore. 249 Mich 673. 229 NW 610, 68 ALR 105.

The whole of judicial power reposing in the sovereignty is granted to courts except as restricted in the constitution. Washington Detroit Theatre Co v Moore, supra.

10. Vidal v Backs, 218 Cal 99, 21 P2d 952, 86 ALR 113t: Shaw v Moore. 104 Vt 529. 162 A 373. :16 ALR 1139.

And see sect. 247, supra'. and sects 234 et seq

84

I certify that the foregoing is my amended return to Order to Show Cause issued out of the District Court on January 8, 1969.

The Act of February 12, 1873, 17 Stat 426 fixed the Gold Dollar at 25.8 grains, Troy weight 9/10 fine for the Gold Dollar.

The Act of February 28, 1878 fixed the Silver Dollar at 412 1/2 grains Troy weight of Silver. These are the last two Constitutional Act of Congress, pursuant to the Constitution in which they coined money, regulated the value thereof and fixed the Standard of weights and measures. The Congress cannot abdicate or delegate these legislative powers. Usurpation by the Executive or his Agents is void. Thus the Silver clad-copper coins are a debasing of the Coins when once the Standard has been fixed. They are also not a legal tender, and are unconstitutional and void. These debased Coins and void Federal Reserve Notes constitute a shallow and impudent artifice, the least covert of all modes of knavery, a miserable scheme of robbery, all of which were the final characteristics of Arbitrary and profligate governments preceding their downfall. No longer does any sentiment of honor influence the governing power of this Nation.

Based upon the Law and Facts presented to me, the Appeal is not allowed in this Court.

February 4, 1969

Justice of the Peace

Credit River Twp.

Scott County, Minn.

Lightning Over the Treasury Building

CHAPTER I

The GOLDSMITHS

Once upon a time, gold-being the most useless of all metals-was held in low esteem. Things, which possessed intrinsic value, were labored for-fought for-accumulated -and prized. These things became the standards of value and the mediums of exchange in the respective localities producing them.

One of the most urgent requirements of man is a wife, and it used to be that one of the most prized possessions of a father was a strong, hard working daughter; and she was considered his property. In those days he didn't give a dowry with her to get rid of her-but if a young blade desired her he had to recompense the Dad before he could lead her away to his cave. Good milk cows were as scarce as good girls, so a wooer hit upon the happy idea, one day, of offering a cow to the "Old Man" for his daughter. The deal was made and cows became, probably, the first money in history.

Since that ancient date most everything that you can think of has been used for money. Carpets, cloth, ornaments, beads, shells, feathers, teeth, hides, tobacco, gophers' tails, woodpeckers' heads, salt, fish hooks, nails, beans, spears,

86. LIGHTNING OVER THE TREASURY BUILDING

bronze, silver and gold-and later, receipts for gold which did not exist-have all been used for money.

The latter article was the invention of the goldsmith and has yielded greater profits than all other inventions combined. It all came about like this:

Women have always had a fondness for beautiful ornaments. The plainer women-the ones who needed decorating with trinkets -were the ones who received the fewest ornaments. This was because men were the ones who supplied them, and-as contradictory as it may seem-the more beautiful the lady was, the more ornaments she usually received. Rings for her fingers-rings for her toes rings for her ears-and rings for her nose-bracelets, ankles, tiaras, throatlets, pendants and foibles of yellow gold were hung on her like decorations on a Christmas tree.

Gold was also used to beautify the palaces of the kings, and of the near kings, shrines and temples. It was held in such high esteem that the people actually began to worship it-making gods and goddesses of it. It became the most desired of all substances. Because of the high esteem in which it was held it superseded all of its competitors in the civilized world as a medium of exchange. The value of other goods was measured by the amount of gold for which those goods could be exchanged.

The yellow metal, for convenience sake, and because the gold itself-and not the ornaments which could be made from it-was in demand, was shaped into rings, bars, discs and cubes, usually bearing an imprint of the kingly or princely owner.

Every community, or city, had its king or ruler. These rulers were all eager to increase their hoard of gold. Raiding expeditions were promoted and the weaker tribes, or kingdoms, were looted of the gold, which they had accumulated. At times they would become so prosaic and unromantic as to carry on legitimate trade with other communities and obtain the gold in that way-but that was usually too slow and unexciting.

When the king arrived home with the precious stuff, his worries were not over. There were thieves in those days. There were also goldsmiths. The goldsmiths were the m2riufacturers of the ornaments which the ladies wore, and they always had a considerable amount of the coveted metal on ha4 To safeguard their treasures they built strong-rooms on their premises in which to store the gold entrusted to their care.

It was not surprising, then, that the custom grew for the leader, upon his return from his thieving expedition, to leave the hoard of gold which he had obtained, with the goldsmith for safe-keeping. The merchants, too, who had traded profitably with other nations, communities or tribes, as well as other merchants and raiders passing through the city where the goldsmith lived, found it convenient-and usually safe-to leave their gold in the strong-room of the goldsmith.

When the gold was weighed and safely deposited in the strong room, the goldsmith would give the owner a warehouse receipt for his deposit. These receipts were of various sizes, or for various amounts; some large, others smaller and others still more small. The owner of the gold, when wishing to transact business, would not as a rule take the actual gold out of the strong-room but would merely hand over a receipt for gold which he had in storage.

The goldsmith soon noticed that it was quite unusual for anyone to call for his gold. The receipts, in various amounts, passed from hand to hand instead of the gold itself being transferred. He thought to himself: "Here I am in possession of all this gold and I am still a hard working artisan. It doesn't make sense. Why there are scores of my neighbors who would be glad to pay me interest for the use of this gold, which is lying here and never called for.

88. LIGHTNING OVER THE TREASURY BUILDING

It is true, the gold is not mine but it is in my possession, which is all that matters."

The birth of this new idea was promptly followed by action. At first he was very cautious, only loaning a little at a time and that, on tremendous security. But gradually he became bolder and larger amounts of the gold were loaned.

One day the amount of loan requested was so large that the borrower didn't want to carry the gold away. The goldsmith solved the problem, pronto, by merely suggesting that the borrower be given a receipt for the amount of gold borrowed-or several receipts for various amounts totaling the amount of gold figuring in the transaction. To this the borrower agreed, and off he walked with the receipts, leaving the gold in the strong room of the goldsmith.

After his client left, the goldsmith smiled broadly he could have a cake and cat it too. He could lend gold and still have it. The possibilities were well nigh limitless. Others, and still more neighbors, friends, strangers and enemies expressed their desire for additional funds to carry on their businesses-and so long as they could produce sufficient collateral they could borrow as much as they needed-the goldsmith issuing receipts for ten times the amount of gold in his strong-room, and he not even the owner of that.

Everything was hunky-dory so long as the real owners of the gold didn't call for it or so long as the confidence of the people was maintained, or a whispering campaign was not begun; in which case, upon the discovery of the facts, the goldsmith was usually taken out and shot.

In this manner, through the example of the goldsmiths, bank credit entered upon the scene. The practice of issuing receipts entries in bank ledgers and figures in bank pass books-balancing the borrower's debt against tile bank's obligation to pay, and multiplying the obligations to pay by thirty or forty times the amount of money which they (the

89. LIGHTNING OVER THE TREASURY BUILDING

banks) hold, is a hangover of the goldsmith's racket and is the cause of most of the distress in America and the civilized world today.

As a result of the enormous profits being made by the bankers, the United Nations scheme had been formed to protect them in their franchise and to enable them to exploit the world.

The Bank of Amsterdam, established in 1609 in the City of Amsterdam, was, it seems, the first institution which followed the practice of the goldsmiths under the title of banking. It accepted deposits and gave separate receipts for each deposit of its many depositors, each deposit comprising a new account. The procedure greatly multiplied the number of receipts outstanding. The receipts constituted the medium of exchange in the country.

At first these bankers did not think of or did not intend to follow & practice of the goldsmiths in issuing more receipts than they had in gold, but their avarice soon gained control and that practice was introduced and pursued. The receipts were not covered by gold but by mortgages and property which they believed could be converted into gold on short notice, if necessary.

All went well for a time, but in 1795 the truth leaked out. It was found that the outstanding receipts called for several times the amount of gold which was held by the bank. This discovery caused a panic and a run on the bank resulting in its destruction because the demand for its gold far exceeded its supply.

The collapse of the Bank of Amsterdam should have been an object lesson to all posterity, but alas, avaricious men again took advantage of the forgetfulness and gullibility of the people and the fraud was revived and perpetuated.

90. LIGHTNING OVER THE TREASURY BUILDING

CHAPTER 11

THE BANK OF ENGLAND

For centuries, in England, the Christians were taught, and believed, that it was contrary to Christian ethics to loan money at usury, or interest. During those centuries the Church and the State saw eye to eye, for they were practically one and the same. It was, therefore, not only UN-Christian, but also illegal to loan money at interest.

The laws of King Alfred, in the Tenth Century, provided that the effects and lands of those who loaned money upon interest should be forfeited to the Crown and the lender should not be buried in consecrated ground. Under Edward the Confessor, in the next Century, it was provided that the usurer should forfeit all his property, be declared an outlaw and banished from England.

During the reign of Henry II, in the Twelfth Century, the estates of usurers were forfeited at their death and their children disinherited. In the Thirteenth Century, King John confiscated and gathered in the wealth of all known usurers. In the Fourteenth Century, the crime of loaning money at interest was made a capital offense, and during the reign of James I, it was held that the taking of usury was no better than taking a man's life.

In view of these facts it is quite understandable how the Jews became, for the most part, the moneylenders and the goldsmiths of England. They for some reason had no compunction of conscience on the matter. They lived outside the pale of the teachings of the New Testament and ignored the unmistakable commands of the Old regarding usury. It is true that they had to carry on their business secretly, but carry it on they did.

Jefferson to Washington:

I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States are reserved to the States or to the people . . ." To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.

The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution.

They are not among the powers specially enumerated: for these are: I. A power to lay taxes for the purpose of paying the debts of the United States; but no debt is paid by this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senate would condemn it by the Constitution.

2. "To borrow money." But this bill neither borrows money nor insures the borrowing it. The proprietors of the bank will be just as free as any other money-holders to lend or not to lend their money to the public. The operation proposed in the bill, first, to lend them two millions, and then to borrow them back again, cannot change the nature of the latter act, which will still be a payment, and not a loan, call it by what name you please.

To "regulate commerce with foreign nations, and among the states, and with the Indian tribes. 'To erect a bank, and to regulate commerce, are very different acts. he who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of (jade. but as "productive of considerable advantages to trade." Still less are these powers covered by any other of the special enumerations.

II.. Nor are they within either of the general phrases, which are the two following:

1. To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumeration's of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

It is an established rule of construction where a phrase will bear either of two meanings to give it that which will allow some meaning to the other parts of the instrument and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention, which formed the Constitution. A proposition was made to them to authorize Congress to open canals and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.

The second general phrase is "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently not authorized by this phrase.

It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the names which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory. . . .

Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience cannot constitute the necessity, which the Constitution makes the ground for assuming any nonenumerated power....

It may be said that a bank whose bills would have a currency all over the States would be more convenient than one whose currency is limited to a single State. So, would be still more convenient that there should be a bank whose bills should have a currency all over the world. But it does not follow from this superior conveniency that there exists anywhere a power to establish such a bank or that the world may not get on very well without it.

Can it be thought that the Constitution intended that for a shade or two of convenience, more or Iess, Congress should be authorized to break down the most ancient and fundamental laws of the several States, such as those against mortmain, the laws of alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly. Nothing but a necessity invincible by any other means can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence. Will Congress be too strait-laced to carry the Constitution into honest effect, unless they may pass over the foundation laws of the State government for the slightest convenience of theirs?

The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the executive. 2. Of the judiciary. 3 Of the States and States legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection....

Veto of the Bank Renewal Bill

Andrew Jackson, 1832

The bill "to modify and continue" the act entitled "An act to incorporate the subscribers to the Bank of the United Starts" was presented to m, on the 401 July instant. Having considered it with that solemn regard to the principles of the Constitution which the day was calculated to inspire, and come to the conclusion that it ought not to become a law, I herewith return it to the Senate, in which it originated, with my objections,

A bank of tire United States is in many respects convenient for the government and useful to the people. Entertaining this opinion, and deeply impressed with the belief that some of The powers and privileges possessed by the existing bank are unauthorized by the Constitution subversive of the rights of the States, and dangerous to the liberties of the people, I felt it m) duty at an early period of my Administration to call the attention of Congress to the practicability of organizing an institution combining all its advantages and obviating these objections. I sincerely regret that in the act before me I can perceive none of those modifications of the bank charter, which are necessary, in my opinion, to make it compatible with justice, with sound policy, or with the Constitution of our country.

The present corporate body denominated the president, directors, and company of the Bank of the United States, will have existed at the time this act is intended to take effect twenty years. It enjoys an exclusive privilege of banking i4nder the authority of the General Government, a monopoly of its favor and support, and, as a necessary consequence, almost a monopoly of the foreign and domestic exchange. The powers, privileges, and favors bestowed upon it in the original charter, by increasing the value of the stock far above its par value operated as a gratuity of many millions to the stockholders.

An apology may be found for the failure to guard against this result in the consideration that the effect of the original act of incorporation could not be certainly foreseen at the time of its Passage. The act before me proposes another gratuity to the holders of the same stock, and in many cases to the same men, of at least seven millions more. This donation finds no apology in any uncertainty as to the effect of the act. On all hands it is conceded that its passage will increase at least 20 or 30 per cent more the market price of the stock, subject to the payment of the annuity of $200,000 per year secured by the act, thus adding in 3 moment one-fourth to its par value. It is not our own citizen only who a re to receive the bounty of our Government More than eight millions of the stock of this bank are held by foreigners. By this act the American Republic proposes virtually to make them a present of some millions of dollars. For these gratuities to foreigners, and to some of our own opulent citizens the act secures no equivalent whatever. They are the certain gains of the present stockholders under the operation of this act, after making full allowance for the payment of the bonus.

Every monopoly and all exclusive privileges are granted at the expense of the public, which ought to receive a fair equivalent. The many millions which this act proposes to bestow on the stockholders of the existing bank must come directly or indirectly out of the earnings of the American people It is due to them, therefore, if their Government sell monopolies and exclusive privileges that they should at least exact for them as much as they are worth in open market 'the value of the monopoly in this case may be correctly ascertained. The twenty-eight millions of stock would probably be at an advance of 50 Per cent, and command in market at least $42,000.000, subject to the payment of the present bonus. The present value of the monopoly, therefore, is $17,000,000, and this act proposes to sell for three millions, payable in fifteen annual installments of $200,000 each.

It is not conceivable how the present stockholders can have any claim to the special favor of the Government. The present corporation has enjoyed its monopoly during the period stipulated in the original contract. If we must have such a corporation, why should not the Government sell out the whole stock and thus secure to the people the full market value of the privileges granted? Why should not Congress create and sell twenty-eight millions of stock, incorporating the purchases with all the powers and privileges secured in this act and putting the premium upon the sales into the Treasury?

But this act does not permit competition in the purchase of this monopoly. It seems to be predicated on the erroneous idea that the present stockholders have a prescriptive right not only to the favor but to the bounty of Government. It appears that more than a fourth part of the stock is held by foreigners and the residue is held by a few hundred of our own citizens, chiefly of the richest class. For their benefit does this act exclude the whole American people from competition in the purchase of this monopoly and dispose of it for many millions less than it is worth. This seems the less excusable because some of our citizens not now stockholders petitioned that the door of competition might be opened, and offered to take a charter on terms much more favorable to the Government and country.

But this proposition, although made by men whose aggregate wealth is believed to be equal to all the private stock in the existing bank, has been set aside, and the bounty of our Government is proposed to be again bestowed on the few who have been fortunate enough to secure the stock and at this moment wield the power of the existing institution. I can not perceive the justice or policy of this course. If our Government must sell monopolies, it would seem to be its duty to take nothing less than their full value, and if gratuities must be made once in fifteen or twenty years W them not be bestowed on the subjects of a foreign government nor upon a designated and favored class of men in our own country. It is but justice and good policy as far as the nature of the case will admit to confine our favors to our own fellow-citizens, and let each in his turn enjoy an opportunity to profit by our bounty. In the bearings of the act before me upon these points I find ample reasons why it should not become a law.

It has been urged as an argument in favor of rechartering the present bank that the calling in its loans will produce great embarrassment and distress. The time allowed to close its concerns is ample, and if it has well managed its pressure will be light, and heavy only in case its management has been bad. If, therefore, it shall produce distress, the fault will be its own, and it would furnish a reason against renewing a power, which has been so, obviously abused. But will there ever be a time when this reason will be less powerful? To acknowledge its force is to admit that the bank ought to be perpetual, and as a consequence the present stockholders and those inheriting their rights as successors be established a privileged order, clothed both with great political power and enjoying immense pecuniary advantages from their connection with the Government.

The modifications of the existing charter proposed by this act are not such, in my view, as make it consistent with the rights of the States or the liberties of the people. The qualification of the right of the bank to hold real estate, the limitation of its power to establish branches, and the power reserved to Congress to forbid the circulation of small notes are restrictions comparatively of little value or importance. All the objectionable principles of the existing corporation, and most of its odious features, are retained without alleviation . . . .

In another of its bearings this provision is fraught with danger. Of the twenty-five directors of this bank five are chosen by the Government and twenty by the citizen stockholders. From all voice in these elections the foreign stockholders are excluded by the charter. In proportion, therefore, as the stock is transferred to foreign holders the extent of

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suffrage in the choice of directors is curtailed. Already is almost a third of the stock in foreign hands and not represented in elections. It is constantly passing out of the country, and this act will accelerate its departure. The entire control of the institution would necessarily fall into the hands of a few citizen stockholders, and the ease with which the object would be accomplished would be a temptation to designing men to secure that control in their own hands by monopolizing the remaining stock. There is danger that a president and directors would then be able to elect themselves from year to year and without responsibility or control manage the whole concerns of the bank during the existence of its charter. It is easy to conceive that great evils to our country and its institutions might flow from such a concentration of power in the hands of a few men irresponsible to the people.

Is there no danger to our liberty and independence in a bank that in its nature has so little to bind it to our country? The president of the bank has told us that most of the State banks exist by its forbearance. Should its influence become concentered, as it may under the operation of such an act as this, in the bands of a self-elected directory whose interests are identified with those of the foreign stockholders, will there not be cause to tremble for the purity of our elections in peace and for the independence of our country in war? Their power would be great whenever they might choose to exert it; but if this monopoly were regularly renewed every fifteen or twenty years on terms proposed by themselves, they might seldom in peace put forth their strength to influence elections or control the affairs of the nation. But if any private citizen or public functionary should interpose to curtail its powers or prevent a renewal of its privileges, it can not be doubted that he would be made to feet its influence.

Should the stock of the bank principally pass into the hands of the subjects of a foreign country, and we should unfortunately become involved in a war with that country, what would be our condition? Of the course which would be pursued by a bank almost wholly owned by the subjects of a foreign power, and managed by those whose interests, if not affections, would run in the same direction there can be no doubt. All its operations within would be in aid of the hostile fleets and armies without. Controlling our currency, receiving our public moneys, and holding thousands of our citizens in dependence, it would be more formidable and dangerous than the naval and military power of the enemy.

If we must have a bank with private stockholders, every consideration of sound policy and every impulse of American feeling admonishes that it should be purely American. Its stockholders should be composed exclusively of our own citizens, who at least ought to be friendly to our Government and willing to support it in times of difficulty and danger. So abundant is domestic capital that competition in subscribing for the stock of local banks has recently led almost to riots. To a bank exclusively of American stockholders, possessing the powers and privileges granted by this act, subscriptions for $200,000,000 could readily be obtained. Instead of sending abroad the stock of -the bank in which the Government must deposit its funds and on which it must rely to sustain its credit in times of emergency, it would rather seem to be expedient to prohibit its sale to aliens under penalty of absolute forfeiture.

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as wen settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 18 11,

96.
decided against it. One Congress in 1915, decided against a bank; another in 1816, decided in its favor. Prior to the preset Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted ought to weigh in favor of the act before me.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as be understands it, and not as, it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than one opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force, of their reasoning may deserve....

The bank is professedly established as an agent of the executive branch of the Government, and its constitutionality, is maintained on that ground. Neither upon the propriety of present action nor upon the provisions of this act was the Executive consulted. It has had no opportunity to say that it neither needs nor wants an agent clothed with such powers and favored by such exemptions. There is nothing in its legitimate functions, which makes it necessary or proper. Whatever interest or influence, whether public or private, has given birth to this act, it can not be found either in the wishes or necessities of the executive department, by which present action is deemed premature, and the powers conferred upon its agent Not only unnecessary, but dangerous to the Government and country.

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Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves in making itself felt, not in its power, but in its beneficence; not .in its control, but in its protection; not in binding the States more closely to the center, but leaving each more unobstructed in its proper orbit.

Experience should teach us wisdom. Most of the difficulties our Government now encounters and most of the dangers which impend over out Union have sprung from an abandonment of the legitimate objects of Government by our national legislation, and the adoption of such principles as are embodied in this act. Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. By attempting to gratify their desires we have in the results of our legislation arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual, reform in our code of laws and system of political economy.

ANDREW JACKSON

Note: From the Journals and debates of the Constitutional Convention and the ratification debates in the State Legislatures, it was almost universally agreed that the express purpose of their meetings was to put an end to paper money of any and all descriptions as a legal tender and to insure that the obligation of Contract would no longer be impaired or invaded by any Government.

A standard unit of value no longer exists. Paper money is not redeemable in any thing. Contracts between individuals lack integrity. German paper "Fiat" Money after WW 1 depreciated so fast that the employees would not accept their wages once a week. They demanded and spent their wages twice a day and re-negotiated t1cir employment contract after each 112 day. If permitted to continue the same thing will happen here. .

The consideration for the note which is the subject of this suit was a good and valuable consideration, and the note is binding on the parties to it by the express terms of the sixteenth section of the law. The note furnished the parties with the means of paying their taxes, and was a benefit to them. All the certificates have been redeemed by the State.

Congress is not authorized to issue bills of credit. The States may do all that is not prohibited, while Congress can do nothing, which is not granted by the Constitution. Congress had no express authority to Issue treasury notes, but they were issued. These notes were precisely like the Missouri certificates.

The treasury notes were not bills of credit; for they were not made, by the act under which they were issued a legal tender. They were freely circulated throughout the United States without objections, and they were most useful Instruments in the financial operations of the government during the last war.

This court has not jurisdiction of the ease. It is not within the requirements of the twenty-fifth section of the Judiciary Act. The validity of the State law was not drawn in question before the courts of Missouri, and no decision was made in those courts upon the validity of the objection now set up under the Constitution of the United States.

The pleadings do not show that the law was drawn in question; they only deny the promise charged in the declaration. Upon the matters thus presented, and on no others, did the courts of Missouri decide.

Hr. Sheffey, in reply. The whole argument on the art of the State of Missouri in founded [424] on the assumption that *the certificates are not bills of credit, because they are not made a legal tender.

The provision of the Constitution was introduced to prevent a mischief; one of the most fatal effects on the property of the citizens of the United States; and thus considered it is to be construed liberally. A strict construction, and particularly one which would render it inoperative, or feeble in its influence, would not be justifiable.

The evils are the same, and the notes will circulate as freely and as extensively whether they are made a tender or not. Whatever paper promise is circulated on the credit of the State is a bill of credit, and is within the sense of the Constitution.

This provision in the Constitution was introduced to prevent the States from resorting to State necessity as an apology for the issue of paper. The states are not allowed to - coin money, and the object clearly was to prevent anything being made by the States w which would serve as it circulating medium.

The word " emit" is a peculiar expression. The states may borrow money and give notes; but that is not coining money, nor is it emitting bills of credit so "wolf and crow scalp certificates " are only evidence that the counties in the states which authorize them owe so much money for meritorious and beneficial services.

It is denied that the power of the United States to issue bills of credit is the same which has been claimed by the State of Missouri under this law. It does not follow that because the United States may issue such bills the states may do so. The States are specially prohibited issues by the Constitution.

The proposition which was made in the convention to give to Congress the power to issue bills of credit may have been rejected because that power had been already given in the power to coin money, and regulate its value. Congress has this power, as an incident, like the power to issue debentures; which is exercised as an incident to the power to regulate commerce.

Mr. Chief Justice Marshall deliver-[425] the opinion of the court, Justices Thompson, Johnson, and M'lean dissenting.

This is a writ of error to a judgment rendered in the Court of Last Resort in the State of Missouri, affirming a judgment obtained by the State in one of its inferior courts against Hiram Craig and others on a promissory note.

The judgment is in these words: "And afterwards at a court, "&c., 'the parties came into court by their attorneys and neither party desiring a jury the cause is submitted to the court; therefore, all and singular the matters and things being seen and heard by the court. It is found by them that the said defendant did assume upon themselves, in manner and form, and the plaintiff by her counsel alleged. And the court also find that the consideration for which the writing declared upon and the assumpsit was made was for the loan of loan office certificates, loaned by the State at her loan office at Chariton; which certificates were issued and the loan made in the manner pointed out by an Act of the Legislature of the said State of Missouri, approved the 27th day of June, 1821, entitled An Act for The establishment of loan-offices and the acts amendatory and supplementary thereto: and the court do further find that the plaintiff has sustained damages by reason of the nonperformance of the assumptions and undertakings of them, the said defendants, to the sum of two hundred and thirty seven dollars and seventy nine cents, and does assess her damages to that sum, Therefore, it is considered," &c.

The first inquiry is into the jurisdiction of the court.

The twenty fifth section of the Judicial Act declares " that a final judgment or decree in any suit in the highest court of law or equity of a State. In which a decision in the suit could be had, where is drawn in question " the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity." May be reexamined, and reversed or affirmed in the Supreme Court of the United States."

1. To determine whether the validity of a statute of the State was drawn in question, it will be proper to inspect file pleadings in the cause, as well as the judgment of the court.

The declaration is on a promissory note, dated on the 1st day of August 1822, promising to pay to the State of Missouri on the 1st day of November 1822, at the loan-office in Chariton, the sum of one hundred and ninety-nine dollars ninety-nine cents, and the two per. cent. Per annum, the interest accruing on the certificates borrowed from the 1st of October, 1821. This note is obviously given for certificates loaned under the Act for the establishment of loan offices. That act directs that loans on personal securities shall be made of sums less than two hundred dollars. This note is for one hundred and ninety-nine dollars ninety-nine cents. The act directs that the certificates issued by the State shall carry two per cent interest from the date, which interest shall be calculated in the amount of the loan. The note promises to repay the sum, with the two per cent interest accruing on the certificates borrowed, from the 1st day of October 1821. It cannot be doubted that tile declaration is on a note given in pursuance of the act which has been mentioned.

Neither can it be doubted that the plea of non-assumpsit allowed the defendants to draw into question at the trial the validity of the consideration on which the note was given. Everything which disaffirms the contract, everything which shows it to be void, may be given in evidence on the general issue in an action of assumpsit. The defendants, therefore were at liberty to question the validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it originated

Have they done so?

Had the cause been tried before a jury, the regular course would have been to move the court to instruct the jury that the act of Assembly in pursuance of which the note was given was repugnant to the Constitution of the [427*] United States, *and to except to the, charge of the judges if in favor of its validity or a special verdict might have been found by the jury stating the act of Assembly, the execution of the note in payment of certificates loaned in pursuance of that act, and referring its validity to the court. The one course or the other would have shown that the validity of the act of Assembly was drawn into question on the ground of its repugnancy to the Constitution, and that the decision of the court was in favor of its validity. But the one course or the other would have required both a court and jury. Neither could *be pursued where the office of the jury was performed by like court. In such a case, the obvious substitute for an instruction to the jury, or a special verdict, is a statement by the court of the points in controversy, oil which its judgment is founded. This may not be the usual mode of proceeding, but it is an obvious mode; and if the court of the State has adopted it, this court cannot give up substance for form.

The arguements of counsel cannot be spread on the record. The points urged in argument cannot appear. But the motives stated by the court on the record for its judgment, and which form a part of the judgment itself, must be considered as exhibiting the points to which those argument were directed, and the judgment as showing the decision of the court upon those points. There was no jury to find the facts and refer the law to the court; but if the court, which was substituted for the jury, has found the facts on which its judgement was rendered, its finding must be equivalent to the finding of a jury. Has the court, then, substituting itself for a jury, placed facts upon the record which, connected with the pleadings, show that the act in pursuance of which this note was executed was drawn into question on the ground of its repugnancy to the Constitution?

After finding that the defendants did assume upon themselves, &-c., the court proceeds to find " That the consideration for which the writing declared upon and the assumpsit was made was the loan of loan office certificates loaned by the State at her loan office at Chariton; which certificates were issued and the loan made in the mariner pointed out *by an [*428] Act of the Legislature of the said State of Missouri, approved the 27th of June, 1821, entitled, " &c.

Why did not the court stop immediately after the usual finding that the defendants assumed upon themselves? Why proceed to find that the note was given for loan office certificates issued under the act contended to be unconstitutional, and loaned in pursuance of that act, if the matter thus found was irrelevant to the question they were to decide?

Suppose the statement made by the court to be contained in the verdict of a jury which concludes with referring to the court the validity of the note thus taken in pursuance of the act; would not such a verdict bring the constitutionality of the act as well as its construction directly before the court? We think it would: such a verdict would find that the consideration of the note was loan office certificates issued and loaned in the manner prescribed by the act. What could be referred to the court by such a verdict but the obligation of the law? It finds that the certificates for which the note was given were issued in pursuance of the act, and that the contract was made in conformity with it. Admit the obligation of the act, and the verdict is for the plaintiff; deny its obligation, and the verdict is for the defendant. On what ground can its obligation be contested, but its repugnancy to the Constitution of the United States? No other is suggested. At any rate, it is open to that objection. If it be in truth repugnant to the Constitution of the United States, that repugnancy might have been urged in The Slate and may consequently be urged, in this court; since it is presented by the facts in the record, which were found by the court that tried the cause.

It is impossible to doubt that, in point of fact, the constitutionality of the act under which the certificates were issued that formed the consideration of this note, constituted the only real question made by the parties, and the only real question decided by the court. But the record is to be inspected with judicial eyes; and, as it does not state in express terms that this point was made, it has been contented, that this court cannot assume the fact that it was made or determined in the tribunal of the State.

100. SUPREME COURT OF THE UNITED STATES.
429*1 *The record shows distinctly that this point existed, and that no other did exist; the special statement of facts made by the court as exhibiting the foundation of its judgment contains this point and no other. The record shows clearly that the cause did depend, and must depend, on this point alone. If, in such a case, the mere emission of the court of Missouri to say, in terms, that the act of the legislature was constitutional, withdraws that point from the cause, or must close the judicial eyes of the appellate tribunal upon it, nothing can be more obvious than that the provisions of the Constitution and of an act of Congress may be always evaded; and may be often, as we think they would be in this case, unintentionally defeated.

But this question has frequently occurred, and has, we think, been frequently decided in this court. Smith v. The State of Maryland (6 Crunch, '286), Martin v. Hunter's Lessee (I Wheat., 355), Miller v. Nicholls (4 W heat., 311). Williams v. Norris (12 Wheat., 117), Wilson et at. v. The Black Bird Creek Marsh Company (2 Peters, 245), and Harris v. Dennie, in this term, are all, we think, expressly in point. There has been perfect uniformity in the construction given by this court to the twenty-fifth section of the Judicial Act. That construction is, that it is not necessary to state, in terms, on the record, that the Constitution or a treaty or law of the United States has been drawn in question, or the validity of a State law, on the ground of its repugnancy to the Constitution. It is sufficient if the record shows that the Constitution, or a treaty or law of the United States must have been construed, or that the constitutionality of a State law must have been questioned, and the decision has been in favor of the party claiming under such law.

We think, that the facts stated on the record presented the question of repugnancy between the Constitution of the United States and the act of Missouri to file court for its decision. If it was presented, we are to inquire.

2. Was the decision of the court in favor of its validity?

The judgement in favor of the plaintiff is a decision in favor of the validity of the contract, [430*] and, consequently, of *the validity of law by the authority of which the contract was made.

The case is, we think, within the twenty-fifth section of the Judicial Act, and, consequently, within the jurisdiction of this court.

This brings us to the great question in the cause: Is the, act of the Legislature of Missouri repugnant to the Constitution of the United States?

The counsel for the plaintiffs in error maintain that it is repugnant to the Constitution, because its object is the emission of bills of credit contrary to the express prohibition contained in the tenth section of the first article.

The Act under the authority of which the Certificates loaned to the plaintiffs in error were issued was passed on the 26th of June, 18211, and is entitled " An Act for the establishment of loan-offices." The provisions that are material to the present inquiry are comprehended in the third, thirteenth, fifteenth, sixteenth, twenty-third, and twenty-fourth sections of the act, which are in these words:

Section the third enacts " that the auditor of public accounts and treasurer, under the direction of the governor, shall, and they are hereby required to issue certificates, signed by the said auditor and treasurer, to the amount of two hundred thousand dollars, of denominations not exceeding ten dollars, nor less than fifty cents (to bear such devices as they may deem the most-safe), in the following form, to wit: "This certificate shall be receivable at the treasury, or any of the loan offices of the State of Missouri, in the discharge of taxes or debts due to the state, for the sum of $_________, with interest for the same, at the rate of two percentum per annum front this date, the _____________day of 182 .

"The thirteenth section declares " that the certificates of the said loan office shall be receivable at the treasury of the State, and by all tax-gatherers and, other public officers, in payment of taxes or other moneys now due to the State or to any county or town therein, and the said certificates shall also be received by all officers, civil and military, in the State, in the discharge of salaries and fees of 6111ce."

The fifteenth section provides " that the commissioners of the said loan offices [*431] shall have power to make loans of the Said certificates to citizens of this State, residing within their respective districts only, and in each district a proportion shall be loaned to the citizens of each county therein according to the number thereof," &c.

Section sixteenth. " That the said commissioners of each of the said offices are further authorized to make loans on personal securities by them deemed good and sufficient for Sums less than two hundred dollars; which securities Shall be Jointly and severally bound for the payment of the amount So loaned, with interest thereon," &c.

Section twenty-third. " That the General Assembly shall, as soon as may be, cause the salt springs and lands attached thereto, given by Congress to this State, to be leased out, and it shall always be the fundamental condition in such leases" that the lessee or lessees Shall receive The certificates hereby required to be issued in payment for salt, at a price not exceeding that which may be prescribed by law; and all the proceeds of the said salt springs, the interest accruing to the State, and all estates purchased by officers of the said Several offices under the provisions of this act, and all the debts now due or hereafter to be due to this State, are hereby pledged and constituted a fund for the redemption of the certificates hereby required to be issued, and the faith of the State is hereby also pledged for the same purpose. "

Section twenty-fourth. " That it shall be the duty of the said auditor and treasurer to withdraw annually from circulation one-tenth part of the certificates which are hereby required to be issued," &c.

The clause in the Constitution which this act is supposed to violate is in these words: " No State shall " " emit bills of credit."

What is a bill of credit? What did the Constitution mean to forbid?

101 .
In it's enlarged, and perhaps it's literal sense, the term "bills of Credit " may comprehend any instrument by which a State engages to pay money at a future day; thus including a certificate given for money borrowed. But the lan [432*] guage of the Constitution itself and the mischief to be prevented which we know from the history of our country, equally limit the interpretation of the terms. The word "emit " is never employed in describing those Contracts by which a state binds itself to pay money at a future day for services actually received, or for money borrowed for present use; nor the instruments executed for such purposes, in common language, denominated "bills of credit." To emit bills of credit," conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purpose, as money, which paper is, redeemable at a future day. This is the sense in which the terms have been always understood.

At a very early period of our colonial history the attempt to supply the want of the precious metals by a paper medium was made to a considerable extent, and the bills emitted for this purpose have been frequently denominated bills of credit. During the war of our revolution we were driven to this expedient, and necessity compelled us to use it to it most fearful extent. The term has acquired an appropriate meaning; and bills of Credit signify a paper medium, intended to circulate between individuals and between governments for the ordinary purposes of society. Such a medium has been always liable to considerable fluctuation. Its value continually changing; And these changes often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man. To cut this mischief by the roots, a mischief which was felt through the United States, and deeply affected the interest and prosperity of all, the people declared in their Constitution that no State should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission Of any paper medium by a State government for the purposed common circulation.

What is the character of the certificates issued by authority of the act under consideration? What offices are they to perform? Certificates signed by the auditor and treasurer of the State are to be issued by those officers to [433*] the amount of two hundred thousand dollars, of denominations not exceeding ten dollar, nor less than fifty cents. The paper purports on its face to be receivable at the treasury, or at any loan office of the State of Missouri, In discharge of taxes or debts due to the State.

The law makes them receivable in discharge of all taxes or debts due to the State, or any county or town therein: and of all salaries and fees or Office, to all officers, civil and military, within the State, and for suit sold by the lessee of the public salt works. It also pledges the faith and funds of the State for their redemption.

It seems impossible to doubt the intention of the Legislature in passing this set, or to mistake the character of these certificates or the office they were to perform. The denominations of the bills from ten dollars to fifty cents fitted them for the purpose of ordinary circulation and their reception in payment of taxes, and debts to the government, and to corporations, and of salaries and fees, would give them currency. They were to be put into circulation; that is, emitted by the government. In addition to all these evidences of an intention to make these certificates the ordinary Circulating medium of the country, the law speaks of them in this character, and directs the auditor and treasurer to withdraw annually one-tenth of them from circulation. Had they been termed " bills of credit," instead of certificates," nothing would have been wanting to bring them within the prohibitory words of the Constitution.

And can this make any real difference? Is the proposition to be maintained that the constitution meant to prohibit names and not any things? That a very important act big with great and erroneous mischief, which is expressly forbidden by words most appropriate description, maybe performed by substitution of a name? That the Constitution in one of the most important,

provisions, may be openly evaded giving it new name to an old thing? We can not think so. We think the certificates emitted under the authority of, this act are as entirely bills of credit as if they had been so denominated in the act itself.

But it is contended that though these certificates should be *deemed bills of credit, [*434] according to the common acceptation of the term, they are not so in the sense of, the Constitution, because they are not made a legal tender.

The Constitution itself furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit, not to bills of a particular description. That Tribunal must be held indeed, which, without the aid of other explanatory words, could venture on this construction. It is the less admissible in this case, because the same Clause of the Constitution contains a substantive prohibition to the enactment of tender laws. The Constitution, therefore, considers the emission of bills of credit and the enactment of tender laws as distinct operations, independent of each other, which may be separately performed. Both are forbidden. To sustain The one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts, is, in effect, to expunge that distinct independent prohibition, and to read the clause as if it had given entirely omitted. We are not at liberty to do this.

The history of paper money has been referred to for the purpose of showing that its great Mischief consists in being made a tender, and that, therefore, the general words of the Constitution may be restrained to a particular intent.

Was it even true that the evils of paper money resulted solely from the quality of its being made a tender, this court would not feel itself authorized to disregard the plain meaning of words, in search of a conjectural intent to which we are not conducted by the language of any part of the instrument. But we do not think that the history of our country proves either

102.
that being made tender in payment of debts is an essential quality of bills of credit, or the only mischief resulting from them. It may, indeed, be the most pernicious; but that will not authorize a court to convert a general into a particular prohibition.

We learn from the Hutchinson's History of Massachusetts (Vol. I., p. 402), that bills of credit were emitted for the first time in the colony in 1690. An army returning unexpectedly from an expedition, against Canada (which had proved as disastrous as The plan was magnifi [435*] cent, found the government *totally unprepared to meet their claims. Bills of credit were resorted to for relief from this embarrassment. They do appear to have been made a tender, but they were not on that account the less bills of credit, nor were they absolutely harmless. The emission, however not being considerable and the bills being soon redeemed, the experiment would have been productive of not much mischief had it not been followed by repeated emissions to a much larger amount. The subsequent history of Massachusetts abounds with proofs of the evils with which paper money is fraught, whether it

be or be not a legal tender. Paper money was also issued in other Colonies, both in the north and south; and whether made a

tender or not, was productive of evils in proportion to the quantity emitted. In the war which Commenced in America in 1755, Virginia issued paper money at several successive sessions under the appellation of treasury notes. This was made a tender. Emissions were afterwards made in 1769, in 1771, and in 1773. These were not made a tender, but they circulated together; were equally bills of credit, and were productive of the same effects. In 1775 a considerable emission was made for the purposes of the war. The bills were declared to current, but were not made a tender. In 1776, an additional emission was made, and the bills were declared to be a tender. The bills of 1775 and 1776 circulated together, were equally bills of credit, and were productive of the same consequences.

The certificates, for which this note was given being in truth "bills of credit" in the sense of the Constitution, we are brought to inquiry. Is the note valid of which they form a consideration?

Cases which we cannot distinguish from this in principle have been decided in State courts of great respectability, and in this court. In the case of The Springfield Bank v. Merrick et al (14 Mass. Rep.. 322), a note was made payable in certain bills, the loaning or negotiating of which was prohibited by statute, inflicting a penalty for Its violation. The note was held to be void. Had this note been made in consideration of these bills, instead of being made payable in them, it would not have been less repugnant to the statute; and would consequently have been equally void.

In Hunt v. Knickerbucker (5 Johns Rep., 327), it was decided that an agreement for the sale of tickets in a lottery not authorized by the Legislature of the State, although Instituted under the authority of the government of another State, is contrary to the spirit and policy of the law, and void. The consideration on which the agreement was founded being illegal, the agreement was void. The books, both of *Massachusetts and New York, [*437] abound with cases to The same effect. They turn upon the question whether the particular case is within the principle, not on the principle itself. It has never been doubted that a note given on consideration which is prohibited by law is void. Had the issuing or circulation of certificates or this or of any other description been prohibited by a statute of Missouri, could a suit have been sustained in the courts of that State on a note given in consideration of the prohibited certificates? If it could not, are the prohibitions of the Constitution to be held less sacred than those of a State law?

It has been determined, independently of the acts of Congress on that subject, that sailing under the license of an enemy is illegal. Patton Vs nickleson (3 wheat,. 204) was a suit brought in one of the courts of this district on a note given by Nicholson to Patton, both citizens Of the United States, for a British license. The United States were then at war with Great Britain, but the license was procured without any intercourse with the enemy.

The judgement of the Circuit court was in favor of the defendant, and the plaintiff Sued out a writ Of error. The counsel for the defendant in error was stopped, the court declaring that the use of a license from the enemy being unlawful, one citizen had no right to purchase from or sell to another such

103.
a license , to be used on board an American vessel. The consideration for which the note was given being unlawful, it followed, of course, that the note was void.

A majority of the court feels constrained to say That The consideration on which the note ill thk ca~e %%:is given is amkill~t the high(-t

law of the hind. and That ifie note itself is

uit(rly void. Ili rendering jud i Lineut for file

plainliff, the coVrt for the Suite of 3li-soliri

decidot in favor of file validity of a law

whi( h is repuguant, to the ConAilutiou (if the

United Statcs~

In file argument we have been reminded by one side of the dignify of a sovercign state; (;f the humiliation of her submitting, ller~-elf to this tribunal; of file danizers wbic~) may result from iudictim, a wound on that di*nity: by the of her, of the still superior dignity of the 4.18*j people of the United States, *who have spoken their will in terms which we cannot misunderstand.

To these admonitions we can only answer, that if the exercise of that jurisdiction which has been imposed upon us by the Constitution and laws of file United States shall be cnIcu lated to bring on those dangers which have been indicated, or if it shall be indkiensable to the preservation of The Uiiion,and cousequeuLly, of the independ,-nee and liberty of theic Suites, these are consideral it -its which address themselves to those depaltments N, hich may A ith

)fect propriety be intluenced by them. _11l'is departmetif can listen only to the mandates of law, and ciin tread only that path which is marked out bY duty.

The jud,-micut of fit(- Supreme Court of the State of Missouri for file First Judicial District. is r(-N t rsed, and the cause remanded, with directions to enter Judgment. for the defend antR.

Mr. jflxtict JoH,;So,;.

This is a case of a new impression and intrinsic difficulty. and brings up quefions of tile most vital importance to tile interests of this Union.

The declaration is in the ordinary form, and file part of,the record of file 8late court which raises the.clut-slions before us, is ex. pressed in thew words: "At a court, &c., came the parties. &c.. and neither part), requiring a jury. the cause is submitted to the court; there

ore. all and singular, file matters and thitim and evidences, beinE seen and beard li~, the court, it is found y file. that the ,.aid defendants (fill assume upon themselves in the mariner anti form na the plaintiffs by their ~. counsel allege: and the court also find that the cousideiatton for which the wriling declared upon and file a.-bit"ipxft was made, wmil, for the loan of loan-office certificates. Inaned

j((t to its 'Spaui-h gov,-rnniew, iNas at the Tillie of it, cc-ion uovel lied bv tile ci% il law as inodiflvd by the Spankh g;)%cinmcut: that it so continued, SUbjL(I. to celtain modifica lious introduced bv act of Cow,ress, tuail it became it Stale; AN lien the pcoplp~incorporated into their iustitutions as much of file civil law ;is They ihought proper: and licrice, their courti, of jii,ticc now partake of a inixed character, perli:ilis combining all the ad%antilges of The civil and common law forms. By one of the

ions of this law the trial by jurv in npon no one; is yet open to all, *and when not demanded, the court acts the double part of jiury and judge.

It is obvious, therefore, that the matter cerlified from the vecord of the State court before recited is in nature of a special verdict, and file judgment of the court is upon that ver, light it shall be examined.

dict and in thi,

The purport of The finding is that the vote (leclared upon wits given " for a lorin of loan. office evitificates lonned by the State under certain State acts, the caption of which is -riven."

, Some doubts were thrown out in the argument whelher we could lake notice of the Slate laws thus found u-iihout being set out at length; but in this there Can be gio question: whatever laws that court would take notice of, we must of necessity receive and consider, as if fully set mit.

liThese certificates were in this form: [*440

thLs certificate gliall be receivable at the treasury. or any of file loan offices of The State o! fissouri. in the discharge of taxes or debLs due the State, for The sum of I$-, with interest for the same, at the rate of two per ceniu r annurn from this date, the

_ ,7,.r -" which form is set

d _, 1 82 1

out in anti prescribed by the act designated in

the finding of the courL

This writ of error is sued out under the

twentv-fifth seclion of the Judiciary Act, up

on tl;e supposition that the State act is in

violation of flint provision in the Constitution

by the at her loin-office at Chariton: which prohibits the Slates from emitting bills

,Which cerlifirages were issued and file loan of credit; and that the note declared on N

made in The manner pointed out 1) ' v an Act of' void, as having been taken for art illegal con

file LegiAmure of )Ii,souri, approved. &c. sideration, or without consideration.

And the court do further fl6d that the plaint- As it preliminar " v questiou, it has been argued

iff halb sustained damages by rvason of the That file ca,e is not within the provisions of

nonpi-iforniance of the assumptions and no- file tvitnty-fifflo s(elion; because-it does not

dvilakinzs aforesaid, (if Them file !qiid de- from -m% . ihinir (in the record that this

11111car 43W I fctidanl.~, *to The sum. &c. : and There- 9111.1111 of duf(."se was peciallY -vt tip in file bile it is , miAibtcd that file plaiwiff recover ., (oull_~ of The State 1,111 This %v con'i'b 1 ll't &c.

Peters 4. U. S., floor. 7.

ADDITIONAL MEMORANDUM

At the trial on December 7,1968 John R. Elsom's Book, "LIGHTNING OVER THE TREASURY" was received in evidence. See included herein pages 11 through 15 for the origin of this Bank racket. Also included is Jefferson's objection to the First Bank of the United States and his reasons and also Andrew Jackson's Veto of the Second Bank of the United States

Whether it is Constitutional for the Gov. of the U.S. to incorporate a Bank, this Court need not pass upon, for it is immaterial to the issues here involved. Such a Corporation certainly cannot have any more rights than a natural person. The emission of Bills of Credit upon their Books, without consideration and the Issuance of Federal Reserve Notes without consideration to circulate as a legal tender for the payment of debts is not permitted, expressly or impliedly by the Constitution of the United States. Paper, whether money or not, is always illegal unless it is fully representative of some material commodity.

The issuance of a paper money without backing by the Banks is the same as if a grain warehouseman were to issue Warehouse Receipts for grain that he did not have. There must be a full representative consideration behind the Paper or it is void as premised in fraud. No rights can be acquired by fraud. The law does not sanction an intentional wrong to the Citizen either in War or in Peace;

February 6,1964
Martin V. Mahoney
Justice of the Peace
Credit River Township
Scott County, Minnesota                      [HOME]