Marbury v. Madison. government of the United States is of the latter description. The powers 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 powers 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 [*177 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 law : if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, 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 a written constitution, 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. 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 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 con sideration. 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 [*178 be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable 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. 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 prin Marbury v. Madison. ciples and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall 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 have 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 favor of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. *Could it be the intention of those who gave this power, *179] to say, that in using it, the constitution should not be looked into ? That a case arising under the constitution should be decided, without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared, that "no tax or duty shall be laid on articles exported from any state." Suppose, a duty on the export of cotton, of tobacco or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares "that no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here, the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? *180] ture. From these, and many other selections which might be made, it is apparent, that the framers of the constitution *contemplated that instrument as a rule for the government of courts, as well as of the legislaWhy otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear, that I will administer justice, without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, accord Clark v. Young. ing to the best of my abilities and understanding, agreeably to the constitu tion and laws of the United States." Why does a judge swear to discharoe his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worG than solemn mockery. To prescribe, or to take this oath, becomes equal a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States, generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all wri.ten constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. *BAILEY E. CLARK v. ROBERT YOUNG & Co. [*181 In Virginia, it is not absolutely necessary, in all cases, to sue the maker of a promissory note, entitle the holder to an action against the indorser. If a promissory note of a third person be indorsed by the purchaser of goods to the vendor, as a conditional payment for the goods: quære? whether the vendor is, in any case, obliged to sue the maker of the note, before he can resort to the purchaser of the goods on the original contract of sale.1 A suit against the defendant, as indorser of the note, and a suit against the defendant, for the goods sold, are upon distinct and different causes of action; and the first cannot be pleaded in bar of the second. It is not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for the goods sold. ERROR from the Circuit Court of the district of Columbia, sitting in th county of Alexandria. This was an action on the case, for goods sold and delivered by Young & Co. to Clark. The declaration had three counts; one for the price of the goods; one on a quantum valebant; and one for money had and received. The cause came on to be tried in the court below, on the general issue, at April term 1802. The facts, on the trial, appeared to be, that on the 9th of September 1794, Young & Co. sold to Clark, 400 bushels of salt, at 4s. 3d. per bushel, amounting to $283.33. At the time of the sale and delivery of the salt, Clark assigned to Young & Co., a negotiable promissory note, made by one Mark Edgar to Pickersgill & Co., and by them indorsed to Clark, dated September 5th, 1794, for $289, payable sixty days after date, at the bank of Alexandria. That Young & Co. instituted a suit, in Fairfax county court, in Virginia, against Clark, on his indorsement of this note; upon the trial of which cause, Clark, by his counsel, "prayed the opinion of the court, whether the plaintiffs could maintain their action against him, previous to 1 See Harris v. Johnston, 3 Cr. 311; Roach v. Hulings, 16 Pet. 326. Clark v. Young. their having commenced a suit and obtained judgment against the drawer or maker of the note; and until his insolvency should appear;" and the court gave it as their opinion, that they could not; and directed the jury accordingly. Whereupon, a verdict was found for the defendant. It also appeared, that at the time the note was indorsed by Clark to Young & Co., as well as at the time when it became payable, Mark Edgar, the maker of the note, was in bad circumstances, and was supposed and reputed to be insolvent. And that, about the middle or last of December 1794, he left Alexandria, and had never returned to it. *182] *The record which came up to this court contained three bills of exceptions: 1. The first contained a demurrer, on the part of the defendant below, to the evidence, which the circuit court refused to compel the plaintiffs to join. This exception was abandoned by the counsel for the plaintiff in error. 2. The second bill of exceptions was in these words: "Memorandum, in the trial of this cause, the defendant gave in evidence to the jury, that the plaintiffs had instituted a suit against him, in the county court of Fairfax, upon the indorsement of the promissory note of Mark Edgar, hereinbefore mentioned; the proceeding in which said suit are in these words, to wit" (here was inserted the record of Fairfax county court): "Whereupon, the counsel for the defendant prayed the court to instruct the jury, that if, from the evidence given in this cause, they should be of opinion, that the promissory note aforesaid, was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandise, sold as aforesaid (although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandise, or received as such by the plaintiffs, but merely as a conditional payment thereof), yet, the receipt of the said note, under such circumstances, and the institution of the aforesaid suit by the plaintiffs, against the defendant, upon his indorsement aforesaid, made the note so far a payment to said plaintiffs, for the said goods, wares and merchandise, as to preclude them from sustaining any action against the said defendant for the goods, wares and merchandise, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia; and that the plaintiffs, having instituted the said suit upon the said note, against the defendant, and that having been decided against the sail plaintiffs, were barred from sustaining this action against the said defendant. But the court refused to give the instruction as prayed, and instructed the jury, that if they should be of opinion, from the evidence, that the salt was sold and delivered by the plaintiffs to the defendant, and the note was indorsed by the defendant to the plaintiffs, in consequence of the salt sold, *183] although the said indorsement was not intended *as an absolute payment, and received as such by the plaintiffs, but merely as a conditional payment thereof, then the same is a discharge for the salt sold, unless it is proved, that due diligence has been used by the plaintiffs to receive the money due on the note; but the bringing a suit against Mark Edgar is not absolutely a necessary part of said diligence; but the want of such suit may be accounted for, by the insolvency of the said Edgar, if proved; or by the conduct of the defendant himself preventing such suit; to which refusal and Clark v. Young. direction of the court, the defendant, by his counsel, prayed leave to except," &c. 3. The third bill of exceptions stated, that "the defendant, by his counsel, then prayed the opinion of the court and their direction to the jury, that the defendant was entitled to a credit for the amount of the said note, unless the plaintiffs could show that they had instituted a suit thereon against Edgar; or that Edgar had taken the oath of an insolvent debtor, or had absconded, at the time the note became payable; or unless the plaintiffs could show that they had offered to return and re-assign the said note to the said defendant, previous to the institution of this suit. But the court having before, in the trial of the said cause, on application by the defendant to instruct the jury in the manner set forth in his second bill of exceptions, given directions to the jury, comprehending all the material points contained in the above prayer, refused to give the instruction as prayed, to which refusal, the defendant, by his counsel, prayed leave to except," &c. Verdict and judgment for the plaintiffs, for the full amount of the salt sold; on which judgment, the defendant brought a writ of error to this court. Swann and Mason, for the plaintiff in error. C. Lee and E. J. Lee, for the defendants. Swann.-If a note is indorsed to the vendor, at the time of the sale of goods, although it is not agreed to be an absolute *payment, yet it is [*184 a conditional payment, viz., if the note be paid, or if it be indorsed over by the vendor, or if he is guilty of laches. (Kearslake v. Morgan, 5 T. R. 513.) In that case, the plea (which was adjudged good on demurrer) stated that the note of one W. Pierce was indorsed by Morgan to Kearslake, "for and on account" of the goods sold, and that Kearslake " then and there accepted and received the note for and on account" of the sum due for the goods. The defendants in error, if they have been guilty of laches, have made he note their own, and must suffer the loss. (Chamberlin v. Delarive, 2 Wils. 353.) The question then arises, what was due diligence in this case? As the law stands in Virginia, Young & Co. ought to have sued Mark Edgar, the maker of the note. Such is the opinion of Judge ROANE, in the case of Mackie v. Davis, 2 Wash. 230, which is confirmed by the judgment of the court of appeals in the case of Lee v. Love, 1 Call 497. But it is unnecessary to resort to the general law in Virginia on this point, because the court of Fairfax county has decided the law in this case, and while that judgment stands unreversed, it is conclusive. The plaintiffs have made their election of two modes of proceeding to recover the money; having failed in one, they are barred as to the other. The same evidence is necessary to support both, and this is the test to prove that they are for the same cause. (Kitchen v. Campbell, 3 Wils. 304.) That court has decided, that Clark was not liable on his indorsement of the note, because Young & Co. had not brought suit against Edgar; or, in other words, they have decided that Young & Co. have not used due diligence, and therefore, have made the note their own; and if so, the original contract for the salt is at an end. Yet the court below have decided this |