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“10. The validity of legislation can never be made to depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt. There is ample reason for this in the fact that the people have set no authority over the legislators with jurisdiction to inquire into their conduct, and to judge what have been their purposes in the pretended discharge of the legislative trust. This is a jurisdiction which they have reserved to themselves exclusively, and they have appointed frequent elections as the occasions and the means for bringing these agents to account. A further reason is, that to make legislation depend upon motives would render all statute law uncertain, and the rule which should allow it could not logically stop short of permitting a similar inquiry into the motives of those who passed judgment. Therefore the courts do not permit a question of improper legislative motives to be raised, but they will in every instance assume that the motives were public and befitting the station. They will also assume that the legislature had before it any evidence necessary to enable it to take the action it did take.

“11. When a legislative enactment proves to be invalid, it is for all legal purposes as if it had never been. It can support no contract, it can create no right, it can give protection to no one who has acted under it, it can make no one an offender who has refused obedience to it. And this is true of any particular provision of a statute which proves invalid, while the remainder is sustained. It is true that one who assumes to disobey a statute as invalid does so at the risk of being punished for his disobedience if the law is sustained; but this is a risk which every one takes when he acts in any matter in respect to which the law is in doubt.”


The giving of such opinions by judges is not an sercise of the judicial function. The relation of the English judges to the king, in former days, and their ancient place as assistants to the House of Lords, led to a practice, on the part of that House, as well as the king, of calling ou them for advisory or “consultative ” opinions. This may be traced very far back in our records, e. 9., in 1387 (2 Stat. Realm, 102-104), King Richard II. puts to his judges a long string of questions.

In this country the constitutions of seven States have provided for obtaining opinions from the judges of the highest court upon application by the executive or the legislature, viz., of Massachusetts, New Hampshire, Maine, Rhode Island, Florida, Colorado, and South Dakota. In one other State, Missouri, a similar clause was introduced in the Constitution of 1865, just aftu. che war; but it continued only ten years, and was left out of the Constitution of 1875. It dates in Massachusetts from 1780, Part II., c. iii. s. 2; in New Hampshire from 1784, — Part II., title, Judiciary Power; in Maine (formerly a part of Massachusetts) from 1820, — Art. VI., s. 3; in Rhode Island, from 1812, Art. X., s. 3; in Florida, from 1868, – Art. V., s. 16, amended in 1875,

Amendment XI. ; in Colorado, from 1886, — Amendment to Art. VI., s. 3; in South Dakota, from 1889, — Art. V., s. 13. In the first three States, the judges are to give their opinions " upon important questions of law and upon solemn occasions.” In Rhode Island, “ upon any question of law, whenever requested,” &c. In Florida, at any time, npon the Governor's request “as to the interpretation of any portion of this Constitution, or upon any point of law;” this was amended by limiting the last alternative to “ any question affecting his executive powers and duties.” In Colorado, the provision reads: “The Supreme Court shall give its opinion upon important questions upon solemn occasions, when required by the Governor, the Senate, or the House of Repre

because a failure on the part of the legislature to do its duty will not justify the judiciary in trying to mend matters by a breach of its own duty. Cooley, in another place (Const. Lim., 6th ed., 68),


“ Cases must sometimes occur when a court should refrain from declaring a statute unconstitutional because not clearly satisfied that it is so, though, if the judges were to act as legislators upon the question of its en actment, they ought, with the saine views, to withhold their assent, froin grave doubts upon that subject.” – Ev.]

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sentatives: and all such opinions shall be published in connection with the reported decisions of the court.” This has been held (In the Matter of Senate Bill No. 65, 12 Colo. 466, in 1889) to be limited to questions of law and such as are questions publici juris, and to call not merely, as elsewhere generally held, for the opinions of the justices, but for authoritative judgments of the court. The resort to this power in Colorado was prompt anul troublesome. See a group of opinions in 9 Col. 620-642. In South Dakota, the Governor may“ require the opinions of the judges of the Supreme Court upon important questions of law involved in the exercise of his executive powers, and upou solemn occasions.” In Missouri, the provision only varied from that in Massachusetts, by the insertion of a word, — “ upon important questions of constitutional law," &c.

In the Federal Convention of 1787, it was proposed that “ each branch of the legislature, as well as the supreme executive, shall have authority to require the opinions of the Supreme Judicial Court upon important questions of law, and upon solemn occasions.” 5 Ell. Deb. 445. But nothing came of it. It is, however, interesting to see that the first President, who had also presided over the Convention, asked for an opinion from the justices. Washington, in 1793, sought to take the opinion of the judges of the Supreme Court of the United States as to various questions arising under our treaties with France. They declined to respond. The President and Cabinet came to the conclusion to ask this opinion from the judges on July 12, 1793. Those who were at hand appear to have suggested delay until they could communicate with their absent associates. A letter of July 23, from the President to Chief Justice Jay and his brethren, is preserved, in which he assents to this delay, but expresses the pleasure that he shall have in receiving the opinion at a convenient time. (Sparks's Washington, x. 359.) The date was but a little later, - not far from Aug. 1, as it would seem,

- of which Marshall speaks when he says (Life of Washington, v. 441, Philadelphia, 1807): ‘About this time it is probable that the difficulties felt by the judges of the Supreme Court in expressing their sentiments on the points referred to them were communicated to the Executive. Considering themselves merely as constituting a legal tribunal for the decision of controversies brought before them in legal form, these gentlemen deemed it improper to enter the field of politics by declaring their opinion on questions not growing out of the case before them.' It was, perhaps, fortunate for the judges and their successors that the questions then proposed came in 80 formidable a shape as they did. There were twenty-nine of them, and they fill three large octavo pages in the Appendix to the tenth volume of Sparks's Washington. Had they been brief and easily answered the court might, not improbably, have slipped into the adoption of a precedent that would have engrafted the English usage upon our national system. As it is, we may now read in 2 Story, Const. sec. 1571, that while the President may require the written opinion of his Cabinet, ' he does not possess a like authority in regard to the judicial department.”

.!– THAYER's Mem. on Adrisory Opinions, 13.

It may be added that the Constitution of the Hawaiian Islands of 1887, Art. 70 (5 Haw. Rep. 716), gives “the King, His Cabinet, and the Legislature .. authority to require the opinions of the justices of the Supreme Court upon important ques. tions of law, and upon solemn occasions.” This provision is said to run back through the Constitution of 1864 (art. 70) to that of 1852 (art. 88), where it seems to have been first introduced, in a slightly different form. A number of such opinions are preserved in the Hawaiian Reports, beginning with one entitled The Segregation of Lepers, 5 Haw. Rep. 162 (May, 1884). — Ed.



(12 Allen, 155.] Reed, Attorney-General, for the Commonwealth. H. W. Paine, and N. St. J. Green, for the petitioner.

Bigelow, C. J. The petitioner in this case stands convicted upon his own confession in open court of the crime of murder in the first degree, and is now awaiting the execution of sentence of death awarded against him on such conviction at a term of this court for the county of Middlesex, held at the city of Lowell, on the third Monday of April, 1864. Under the provisions of Gen. St. c. 146, $ 13, he made application by petition to a “justice of this court on the 21st day of March last, for a writ of error on said judgment.” His petition is accompanied by an assignment of certain errors, which he alleges to exist in the record. With the assent of counsel, who appear in his behalf, and in conformity to the precedent established in Webster v. The Commonwealth, 5 Cush. 386, the hearing of this petition was adjourned into the full court. The grounds upon which the alleged errors are supposed to rest have been presented to our consideration with great fulness and ability by learned counsel, and the case now stands for our final adjudi. cation on the causes of error assigned in support of the petition. It is hardly necessary for us to say that we have considered the questions thus brought before us with the most anxious solicitude, and that we have examined and deliberated upon them under a deep sense of the responsibility which rests upon us, in view of the solemn and momentous consequences to the petitioner involved in our decision.

But it is not for this reason only that we have been earnest in our desire to weigh with the utmost candor and impartiality the causes of error assigned by him. Some of the points now relied on as affording sufficient ground for a reversal of the judgment against him have been heretofore called to our attention. By an order of the Governor and Council passed on the 31st day of October, 1864, in pursuance of the provision of the Constitution, c. 3, § 2, the inquiry was propounded to us “ whether it was competent for this court, especially when held by a single justice, to enter up a final judgment against a prisoner, and award the sentence of death, upon his own plea of guilty of murder in the first degree; or whether, on the contrary, it is not necessary to record the plea as a general plea of guilty, and either enter judgment as of murder in the second degree, or else submit the question of the degree of murder to be found by a jury.” To this inquiry, in compliance with the duty imposed by the Constitution, an answer, signed by all the justices of this court, covering, as we then supposed, the entire subject matter concerning which information was sought, was returned to the Governor and Council, which stated in substance that the convic

VOL, I. 12

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tion was not irregular or informal on the grounds which were under-
stood to be suggested by the inquiry; and that the judgment and
sentence were duly entered up and recorded. 9 Allen, 585. The
opinion thus given, like all others of a similar character, was formed
without the aid of counsel learned in the law, or any statement of the
reasons on which the regularity or validity of the proceedings had been
called in question. Although it is well understood and has often
been declared by this court that an opinion formed and expressed under
such circumstances cannot be considered in any sense as conclusive or
binding on the riglits of parties, but is regarded as being open to recon-
sideration and revision, yet it necessarily presupposes that the subject
to which it relates has been judicially examined and considered, and an
opinion formed thereon. We have therefore felt it to be our duty most
sedulously to guard against any influence which might flow from our
previous consideration of some of the causes of error now assigned as
the ground for a reversal of the judgment. ...,

The result is, that the prayer of the petitioner is denied.
The prisoner was accordingly hung.

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SETTS. 1878.

[126 Mass. 557.) The Justices of the Supreme Judicial Court, having now fully considered the questions upon which their opinions have been required by the Honorable Senate and the Honorable House of Representatives respectively, and the precedents communicated to them by the joint order of the two Houses, and other precedents and authorities on the subject, respectfully submit the following opinion :

The Constitution of the Commonwealth provides as follows: “All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills." Chap. 1, sect. 3, art. 7.

The questions proposed by the two Houses, although differing in form, appear to us to present substantially one and the same question ; namely, whether a bill which appropriates money from the treasury of the Commonwealth, and does not provide for levying such money upon the people, by tax or otherwise, is a money bill, which must, by this provision of the Constitution, originate in the House of Representatives.

Upon first taking up this question, some of us had doubts whether it was one upon which we could properly express an opinion. Although a consideration of the precedents dispelled those doubts, it has seemed

to us proper, in order to show that, in undertaking to define the constitutional authority of a branch of the legislature, we have been cautious not to exceed our own, that we should state the reasons on wbich it has appeared to us to be our duty to answer the question to the best of our information and abilities.

The question is indeed, in one aspect, a question of parliamentary privilege and of parliamentary procedure ; but it is also a question of the construction of the Coustitution of the Commonwealtb, which is on this subject the supreme law.

The Constitution declares that “ each branch of the legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions.” Chap. 3, art. 2. This article, as reported in the Convention that framed the Constitution, limited the authority to the Governor and Council and the Senate, and was extended by the Convention so as to include the House of Representatives ; Journal of Convention of 1779-80 (ed. 1832), 211, 242; and, as may be inferred from the form in which it was originally presented, evidently had in view the usage of the English Constitution, by which the king, as well as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinions of the twelve judges of England.

The practice of the Stuart kings, in taking extrajudicial opinions of the judges upon questions about to come before them judicially, was an unconstitutional abuse of the royal authority in this respect. Stafford's Case, Year-Book, 1 H. VII. fol. 26, pl. 1 ; Lord Coke, in Peacham's Case, 2 Howell's State Trials, 871 ; 3 Inst. 29; Foster's Crown Law, 200; Co. Lit. 110, Hargrave's note. But, since the Revolution of 1688, so sturdy an assertor of the independence of the judges as Lord Holt joined with the other judges of the time in opinions to King William III. upon the extent of the power of pardon ; Fenwick's Case, Fortescue, 385; and to Queen Anne npon the question whether a writ of error should be granted as of right; Paty's Case ; 14 East, 92, note ; 14 Howell's State Trials, 861, note. And, as late as 1760, Lord Mansfield, Chief Justice Willes, and other judges, gave an opinion to King George II. upon the jurisdiction of a court-martial to try an officer, after his dismissal from the army, for a military offence committed while in actual service. Lord George Sackville's Case, 2 Eden, 371. So, under the Constitution of the Commonwealth, opinions have been given by the justices of the Supreme Judicial Court to the Governor and Council upon questions of the exercise of the power of pardon, 13 Gray, 618, the issue of death-warrants, 11 Cush. 604, the validity of the proceedings of a court-martial, 3 Cush. 586, and the authority of the Governor, as commander-in-chief, over the militia. 1 Allen, 197, note.

We are not aware of any instance since 1760 in which the Crown has exercised the power of asking the opinion of the judges. But the

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