being against the constitution. The law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its particular state, and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void. The judicial department is the proper Power of the power in the governinent to determine whether a statute be declaro them or be not constitutional. The interpretation or construction of the constitution, is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend, that the law was superior to the constitution, and that the judges had no right to look into it, and regard it as the paramount law. It would be rendering the power of the agent greater than that of his principal, and be declaring, that the will of only one concurrent and co-ordinate department of the subordinate authorities under the constitution, was absolute over the other departments, and competent to control, according to its own will and pleasure, the whole fabric of the government, and the fundamental laws on which it rested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them. From the Vol. 1.


mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by the means of frequent periodical elections, it follows, that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights.

It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in violation of the constitution, or of any provision of it, null and void. The progress of this doctrine, and the manner in which it has been discussed and established, is worthy of notice. It had been very ably examined in the Federalist, and its solidity vindicated by unanswerable arguments; but it was not until the year 1792 that it seems to have received a judicial consideration.

In Hayburne's case, which came before the Circuit Court of the United States for the district of New-York, in April, 1791, the judges proceeded with the utmost delicacy and

a No. 78.

caution to declare an act of Congress, assigning ministerial duties to the Circuit Courts, to be unconstitutional. The court laid down the position, that Congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial; and that the act in question was not obligatory upon the court. But they nevertheless proceeded, voluntarily and ex gratia, as commissioners, to execute the duties of the act.

In Pennsylvania and North Carolina, the Circuit Courts of the United States, within those districts, equally held the act not binding upon them, because the legislature had no right or power to assign to them duties not judicial; but they were not so accommodating as the Circuit Court of New-York, for they declined to act under the law in any capacity.

In 1792, the Supreme Court of South Carolina, in the case of Bowman v. Middleton," went further, and set aside an act of the colony legislature, as being against common right and the principles of magna charta, for it took away the freehold of one man and vested it in another, without any compensation, or any previous attempt to determine the right. They declared the act to be ipso facto void, and that no length of time could give it validity. This was not strictly a question arising upon any special provision of the state constitution, but the court proceeded upon those great fundamental principles which support all government and property, and which have been supposed by many judges in England to be sufficient to check and control the regulations of an act of parliament. The next case in which the power of the judiciary to disregard or set aside a statute for being repugnant to the constitution, was one that came before Judge Paterson, at Philadelphia, in April, 1795. He asserted the duty of the court, and the paramount authority

a 2 Dallas, 410, 411, 412.

b 1 Bay, 352, c Vonhorn v. Dorrance, 2 Dallas, 304,

of the constitution, in remarkably clear and decided language. That was a case of an act of Pennsylvania, which be held to be unconstitutional, and not binding. He insisted, that the constitution was certain and fixed, and contained the permanent will of the people, and was the supreme law, and paramount to the power of the legislature, and could only be revoked or altered by the authority that made it ; that the legislature was the creature of the constitution, and owed its existence to the constitution, and derived its powers from the constitution, and all its acts must be conformable to it, or else they will be void.

The same question afterwards arose before the Supreme Court of South Carolina, in the case of Lindsay v. The Charleston Commissioners ;" and the power of the legislature to take private property for necessary public purposes, as for a public street, was freely discussed; and though the judges were equally divided on the question whether it was a case in which the party was entitled to compensation, those who held him so entitled, held also, that the law was unconstitutional and inoperative, until the compensation was made. The judges, in exercising that high authority, claimed to be only the administrators of the public will; and the law was void, not because the judges had any control over the legislative power, but because the will of the people, declared in the constitution, was paramount to that of their representatives expressed in the law. In Whittington v. Polk, it was decided, in 1802, by the General Court of Maryland, with great clearness and force, that an act of the legislature, repugnant to the constitution, was void, and that the courts had a right to determine when it was so void.

Hitherto, this question, as we have seen, was confined to some of the state courts, and to the subordinate, or Circuit Courts of the United States. But, in Marbury v. Madison, the subject was brought under the consideration

a 2 Bay, 38.

b 1 Harr. & Johns. Mary. Rep. 236. ci Cranch, 137.

of the Supreme Court of the United States, and received a clear and elaborate discussion. The power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any state legislature, were declared, in an argument approaching to the precision and certainty of a mathematical demonstration.

The question, said the chief justice, was, whether an act repugnant to the constitution, can become a law of the land, and it was one deeply interesting to the United States. The powers of the legislature are defined and limited by a written constitution. But to what purpose is that limitation, if those limits may at any time be passed ? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation. If the constitution does not control any legislative act repugnant to it, then the legislature may alter the constitution by an ordinary act. The theory of every government, with a written constitution, forming the fundamental and paramount law of the nation, must be, that an act of the legislature repugnant to the constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow, in fact, what was established in theory, and to make that operative as law which is not law. It is the province and the duty of the judicial department, to say what the law is ; and if two laws conflict with each other, to decide on the operation of each. So, if the law be in opposition to the constitution, and both apply to a particular case, the court must either decide the case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law. If the constitution be superior to an act of the legislature, the courts must decide between these conflicting rules, and how can they close their eyes on the constitution, and see only the law ?

This great question may be regarded as now finally settled, and I consider it to be one of the most interesting

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