"abounds with beautiful figures," and that "metaphorical illustration is one thing, and argument another." It might be some consolation to Judge Patterson, were he living, under the summary condemnation of our Judge, to know that other Judges of other state courts have received his opinion with the utmost respect; have adopted his argument; declaring his sentiments to be the genuine effusions of a mind devoted to liberty, and ardently anxious to proclaim its true principles to the world."

In the case of Vanhorne vs. Dorrance, this great and excellent Judge thus delivers himself:

"Legislation is the exercise of sovereign authority. High and important powers are necessarily vested in the legislative body; whose Acts, under some forms of government, are irresistible and subject to no control."

He instances the absolute and transcendent power of the Parliament of England :—

"It is omnipotent in the scale of political existence." "In America the case is widely different: every state in the Union has its Constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government delivered by the mighty hand of the people, in which first principles of fundamental law are established. The Constitution is permanent and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the power that made it. The life-giving principle, and the death-doing stroke, must proceed from the same hand. What are legislatures? Creatures of the Constitution; they owe their existence to the Constitution; they derive their power from the Constitution. It is their commission; and therefore all their acts must be conformable to it. The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes the limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, the Constitution is the sun of the political system, around which, all legislative, executive, and judicial bodies, must revolve. Whatever may be the case in other countries, yet in this there is no doubt that every Act of the legislature, repugnant to the Constitution, is absolutely void."

The Judge then puts some strong cases of Acts of a legislature respecting religion; abridging the rights of conscience; of elections; of trial by jury; and asks, could the legislature annul them? He then proceeds:

"I take it to be a clear position, that if a legislative Act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. I hold it to be a position equally clear and sound, that, in such case, it will be the duty of the court to adhere to the Constitution, and to declare the Act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both legisla tors and Judges are bound to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of-that the judiciary, in this country, is not a subordinate, but a co-ordinate branch of the government."

This profound jurist here lays down certain undeniable and undenied political axioms, and, which admitted, his consequence follows in a direct and unquestionable course. And yet Judge

Gibson can see no argument in it; he can discover nothing but "beautiful figures," and "metaphorical illustrations."

In February 1803, the celebrated case of "Marbury vs. Madison," was decided by the Supreme Court; and the occasion required that Chief Justice Marshall should apply his mighty mind, "the strength of his ratiocinative powers, "to this interesting subject. Judge Gibson admits that the Chief Justice does argue the question; but pronounces the argument to be "inconclusive;" and considers the right maintained by it to be "a professional dogma," held "rather as a matter of faith than of reason;" although it is true he "once embraced the same doctrine, but without examination."

We hope we shall rather gratify than tire our readers by presenting to them the argument of the Chief Justice entire; and let it be fairly compared with that which "compelled" Judge Gibson "to abandon" its heresies and its dogmas. If we addressed ourselves only to professional readers, this, as well as many other of our quotations, might be spared; but the subject is not a professional one merely; it is a great constitutional principle, in which every citizen has a deep stake, and thousands will examine it with interest, who may have no access to a lawyer's library. The opinion of the Chief Justice will be found to be brief, perspicuous, and unanswerable; relying not on "faith," but abounding with clear reasoning and plain common sense; altogether avoiding all subtlety and refinement, forming a striking contrast to the fallacious and wiredrawn sophistry with which the principles are assailed, but not shaken. We shall, unwillingly, but for brevity, omit to notice several cases in which the same court has exercised this power of restraining both the national and state legislatures, when stepping beyond their constitutional boundary. The principles settled in "Marbury vs. Madison," have been uniformly adhered to:

"The question," says the Chief Justice, on delivering the opinion of the court, "whether an Act repugnant to the Constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can il, nor ought it to be, frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

We pause to ask, if there is any thing dogmatic in this?-any thing requiring extraordinary faith to receive it?-any thing repugnant to reason? Is it not plain undeniable truth, which the most common intelligence can comprehend, and must assent to? And yet, in this single paragraph, there is enough of principle and

argument to maintain the position contended for. The people have a right to establish the principles of their government; the principles so established, are fundamental, supreme, and intended to be permanent; the exercise of this original power is a great exertion, and cannot be frequently repeated. It follows then, that the people, in forming such a government, must have intended to provide some maintaining power; some power to protect and preserve the principles they had established; to secure the supremacy and permanency of these principles from violation from any quarter; and the impossibility of a recurrence to their own original right, on every occasion of a violation, demonstrates that the power of keeping all right, was intended to be placed in some part of the system; and that no part but the judiciary can exercise it to any practical or effectual purpose, has already been made manifest.

The Chief Justice proceeds

"This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

"The government of the United States is of the latter description. The pow ers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are pow ers limited? and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? 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. It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ordinary Act.

"Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and, like other Acts, is alterable when the legislature shall please to alter it.

"If the former part of the alternative be true, then a legislative Act, contrary to the Constitution, is not a law; if the latter part be true, then written Consti tutions are absurd attempts, on the part of the people, to limit a power, in its na ture illimitable.

"Certainly all those who have framed written Constitutions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an Act of the legislature, repugnant to the Constitution, is void.

"This theory is essentially attached to written Constitutions, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject."

We would beg our readers to remark, that the argument is not drawn from any clause or phrase in the Constitution; but the power of the court is claimed and maintained as "essentially attached to written constitutions;" as a "fundamental principle of our society." Until, therefore, Judge Gibson can remove the great principle on which the Chief Justice builds his argument, it is entirely useless for him to endeavour to make a distinction

between Acts that are repugnant to the Constitution of the particular state, and Acts that are repugnant to the Constitution of the United States."

The Chief Justice, having laid this strong and immovable foundation, that a legislative Act, repugnant to the Constitution, "is not a law;" that it is void;"-proceeds to show the right of the court to refuse to execute it.

"If an Act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? or, in other words, though it be not a law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact, what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must decide that case, conformably to the law, disregarding the Constitution; or, conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution; and the Constitution is superior to any ordinary Act of the legislature; the Constitution, and not such ordinary Act, must govern the case to which they both apply."

The Chief Justice proceeds

"Those, then, who controvert the principle, that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an Act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature should do what is expressly forbidden, such Act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

"That it thus reduces to nothing, what we deemed the greatest improvement on political institutions,-a written Constitution,-would of itself be sufficient, in America, where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States, furnish additional arguments in favour of its rejection."

The Chief Justice goes on, not to rest his argument on any expressions of the Constitution, for he has placed it on great and immutable principles, but to strengthen it by a recurrence to various provisions of that instrument-which can be preserved only by the protecting power of the court; and which, if left to Judge Gibson's remedy, "the instructions of the people to their representatives to repeal the obnoxious act," might be subverted to the murder, plunder, and oppression of our citizens, without the possibility of redress. For instance, if the legislature should pass à Bill of Attainder against one, or one hundred of our citizens, whom it might be convenient for some party purpose to get out

of the way-on Judge Gibson's theory, the court must condemn the victims to death, in direct violation of the Constitution, and trust to instructions from the people to their representatives, to repeal the obnoxious Act, some months after the murdered objects of legislative despotism are rotten in their graves. So, of many other cases, in which the remedy, by a repeal of the law, would be equally ineffectual and absurd. To preserve the Constitution, you must have a power to prevent its violation; and not merely to recall the obnoxious Act, after the mischief is consummated. Against such acts of violence from the national legislature, Judge Gibson is willing to find protection in the courts of the United States, who may stay the bloody hand of the executioner; but although the Constitution of Pennsylvania also declares, that "no person shall be attainted of treason or felony by the legislahe lets us know, that if such an Act should be passed, he will execute it from the bench of justice, and refer his victim to instructions from the people to their representatives, for redress. How these instructions are to be obtained, and what shall be deemed the instructions of the people, we are not informed. Are they to be had at town meetings-or by petitions? Must they come from a majority of all the people of the state, and how is the majority to be ascertained? Before such a remedy could be applied, the Constitution might be scattered to the winds, and the whole country groan under a legislative, irresponsible despotism. Convulsion and civil war are the only refuge from this worst of all despotisms, if we can find none in our courts, the sanctuaries of justice and of the law.

The Chief Justice refers to the oath of office prescribed to the Judges, in which they swear to discharge their duties, agreeably to the Constitution, as demonstrative of the legislative opinion on this subject.

It is certainly to be regretted, that such an argument as the Chief Justice has put forth, has failed to convince Judge Gibson, that the judicial power contended for is vested in our courts, as inseparable from the theory of our government, and essential to our rights and liberties under it. The apprehension of danger, however, from the Judge's heresy, is diminished by the consideration that he is the only Judge in all these United States, who is afflicted with this weakness; or at least, as far as our research has gone, who has judicially exposed it. On the other hand, the doctrines of Chief Justice Marshall have been recognised, adopted, enforced, and acted upon, by the courts of almost every state. We had made abstracts of the cases in which the question has occurred, and of the opinions delivered upon it, with an intention of introducing them into this article; and it is with much regret we relinquish the design, on account of the length to which they would extend our review. We shall, nevertheless,