In the Constitutional Convention of 1787 it was proposed to give this power to the President and Congress and to ask opinions of the Supreme Court, but nothing came of it. (5 Ell. Deb. 445.)

In 1793 Washington asked the opinion of the Supreme Court in re Jay's Treaty. Twenty-nine questions were propounded. The Court refused to answer. Thayer thinks it fortunate that this first request should have come in so weighty a form, else the court might have slipped into an unfortunate precedent, and thus become concerned in politics.

"New York originally not only gave her legislators a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless repassed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period, 6590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds necessary to re-enact them." Baldwin, The American Judiciary, p. 30.

5 In Marbury v. Madison the Supreme Court, although it declared that it had not jurisdiction of the case, went on to lay down the law applicable to the other points at issue. The excuse for so doing was that the court felt itself obligated first to determine whether or not the mandamus asked for should issue, so that, if possible, it might dispose of the case without calling into question the constitutionality of the act of Congress granting the original jurisdiction under which the suit had been brought. Whether this was a sufficient excuse is doubtful. Jefferson was vehement in criticism of the action.

5. When it is possible to do so without doing too great violence to the words actually used, the language of a statute will be so restricted as to render the measure constitutional.6 For it is always presumed that Congress did not intend to exceed its constitutional powers. Where, however, the scope of the law is plainly expressed, and as such is unconstitutional, the court will not resort to a strained or arbitrary interpretation in order to render the law valid. Thus in Howard v. Illinois Central R. Co.7 the court declined to restrict the terms of a law with reference to the liability of a common carrier for injury to "any of its employees " to such employees only as should be injured while engaged in interstate commerce, and thereby to render the statute valid as applied within the States.8

In the Dred Scott case the Supreme Court after holding that the lower federal courts from which the case had come by appeal, had had no jurisdiction, went on to discuss the other points raised in the record before it. The propriety of this course was strenuously objected to by the minority justices. Taney's argument was that the plea to the jurisdiction that had been entered was not as to the jurisdiction of the Supreme Court, but as to that of the circuit court in which the suit had been begun, and that, therefore, the case being fairly before the Supreme Court, that tribunal might examine the whole record and correct any errors that might have been made by the courts below. "There can be no doubt of the jurisdiction of this court to reverse the judgment of a circuit court, and to reverse it for any error apparent in the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this too, whether there is any plea in abatement or not. The objection appears to have arisen from confounding writs of error to a state court, with writs of error to a circuit court of the United States. Undoubtedly, upon a writ of error to a state court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jursidiction in the court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a state court and to a circuit court of the United States are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a circuit court of the United tes, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court to examine the whole case as presented by the record, and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment and remand the case. And certainly an error in remanding a judgment upon the merits in favor of either party, in a case in which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit."

Justice Curtis in his dissenting opinion showed by a citation of authority that the foregoing had not in fact been the practice and declared doctrine of the Supreme Court, and properly said that, especially, the court should not have proceeded in the case to declare unconstitutional an act of Congress in violation of the principle that this will not be done when it is possible to render a judgment upon any other ground.

6 "It is elementary when the constitutionality of a state is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. Knights Templars Indemnity Co. v. Jarman (187 U. S. 107; 23 Sup. Ct. Rep. 108; 47 L. ed. 139). And unless this rule be considered as meaning that our duty is to first decide that a statute is unconstitutional and then proceed to hold that such ruling was unnecessary because the statute is susceptible of a meaning, which causes it not to be repugnant to the Constitution, the rule plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States v. D. & H. Ry. Co., 213 U. S. 366; 29 Sup. Ct. Rep. 527; 53 L. ed. 836.