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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.a

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. asserted the duty of the court, and the paramount authority


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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.
c 1 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

When a sta

tute takes effect.

points in favour of constitutional liberty, and of the security of property, in this country, that has ever been judicially determined. There never was any doubt or difficulty in New-York, in respect to the competency of the courts to declare a statute unconstitutional, when it clearly appeared to be so. Thus, in the case of The People v. Platt, the Supreme Court held, that certain statutes affecting the right of Z. Platt, and his assigns, to the exclusive enjoyment of the river Saranac, were in violation of vested rights under his patent, and so far the court held them to be unconstitutional, inoperative, and void. The control which the judicial power of the state had, until the year 1823, over the passing of laws, by the institution of the council of revision, anticipated, in a great degree, the necessity of this exercise of duty. A law containing unconstitutional provisions, was not likely to escape the notice and objection of the council of revision; and the records of that body will show, that many a bill, which had heedlessly passed the two houses of the legislature, was objected to, and defeated, on constitutional grounds. The records to which I refer are replete with the assertion of salutary and sound principles of public law and constitutional policy, and they will for ever remain a monument of the wisdom, firmness, and integrity of the council.

A statute, when duly made, takes effect from its date, when no time is fixed, and this is now the settled rule. It was so declared by the Supreme Court of the United States in Matthews v. Zane, and it was likewise so adjudged in

a See decisions in the state courts to the same point, in 1 N. H. Rep. 199. 12 Serg, and R. 330. 339. Charlton's Rep. 176. 1 Har. & J. 236. 1 Hayw. 28. 2 Hayw. 310. 374. 1 Murphy, 58. 3 Dessauss. 476. 1 Rep. Con. C. S. C. 267. Le Breton v. Morgan, 16 Martin's Loui. R. 138.

b 17 Johnson, 195.

c 7 Wheaton, 104.

the Circuit Court in Massachusetts in the case of the brig Ann. I apprehend, that the same rule prevails in the courts of the several states, and that it cannot be admitted that a statute shall, by any fiction or relation, have any effect before it was actually passed. A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in every other case relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect; and which doctrine was very much discussed in the case of Dash v. Vankleeck, and shown to be founded, not only in English law, but on the principles of general jurisprudence. A retrospective statute affecting and changing vested rights, is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects, and adding to the means of

a 1 Gallison, 62.

b 7 Johnson, 477.

c Nemo potest mutare consilium suum in alterius injuriam, Dig. 50. 17. 75. Taylor's Elements of the Civil Law, 168. Code 1. 14. 7. Bracton, 1. 4. fo. 228. Code Napoleon, art. 2.

d Tennessee Bill of Rights, art. 20. New-Hampshire Bill of Rights, art. 23. Osborne v. Huger, 1 Bay, 179. Ogden v. Blackledge, 2 Cranch, 272. Bedford v. Shilling, 4 Serg. & R. 401. Duncan, J. in Eakin v. Raub, 12 Ibid. 363-372. Society v. Wheeler, 2 Gallison, 105. Washington, J., in Society for Propagating the Gospel v. New-Haven, 8 Wheaton, 493. Merrill v. Sherburne, 1 NewHampshire Rep. 199. Ward v. Barnard, 1 Aiken, 121. Brunswick v. Litchfield, 2 Greenleaf, 28. Proprietors v. Ken. Pur. Ibid. 275. Story, J., in Wilkinson v. Leland, 2 Peters' U. S. Rep. 657, 658. Lewis v. Brackenridge, 1 Blackford's Ind. Rep. 220.

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