constitutional, is a question which can be asked according to any constitution, written or unwritten, American or European. But the second question,-whether the previous question is a judicial or an extrajudicial one, can never be asked according to some constitutions. According to them, any judicial tribunal attempting to decide the previous question would certainly proceed extrajudicialiter. The Textual Commentary will endeavour to show that the U. S. constitution contains express terms providing that the previous question may be a judicial and not an extrajudicial one.

It is an opinion that has received the greatest amount of acquiescence that the constitution implies, but does not express, the existence of judicial competency to declare legislation unconstitutional and so void. The writer's most important contention is that such a competency is expressly provided for by constitutional texts. This expressage of meaning is due to the fact that the constitution legislates upon the subject by using technical legal terms. The meanings of technical terms in all sciences are express; and it is for that reason that such terms are selected by those who decide to use them. This head of the subject has been enlarged upon in Chapter 1. (see p. 4). What is there said, is again called to the reader's attention in connection with the nature of the Textual Commentary.

It may seem strange at this date, when the constitution is more than a century old, that it should be possible to contend that the express meaning of any portion of its text is not universally recognized. Strange as the fact may be, it is not as much so as a very ancient fact well known throughout all Christendom. Eastern and Western Christians have been divided for more than a thousand years as to the express meaning of a text of a common creed. The former hold that the insertion of the filioque contradicts the express meaning of the text. The latter deny any such contradiction. Thus, the East of Christendom asserts an express meaning for a fundamental text, which the West denies.

The Textual Commentary will proceed upon the basis that the written text of the constitution can not be altered, either

directly by corruption, or indirectly by misinterpretation. No matter how inveterate and universal an erroneous interpretation may be, it can not overcome the express meaning of the text of the constitution. That text is a thing which can never become obsolete; quia per non usum etiam per mille annos nunquam tollitur.

No. 7.

Of the relation of the Textual Commentary to the exposition of the Framers' intentions.

The exposition of the meaning of the constitutional text in the Textual Commentary harmonizes with the exposition of the intentions of the Framers in the Historical Commentary. The writer's method will, however, be to establish the truth of both expositions separately and independently of each other. Readers will not be asked to rely upon his views of the Framers' intentions in order to be convinced of his understanding of the constitutional text. His object is to convince readers of every school of opinion. He, therefore, must have regard to the scruples of those jurists who refuse to be influenced by anything in the proceedings and debates of the Framers, either because they were kept secret for many years after the adoption of the constitution, or because they are held to be without authority in expounding its text. These gentlemen are a very important class of constitutional lawyers, whether they be few or many in number. They include Mr. McMurtrie, and it is necessary to meet them on their own ground. Nowhere else can they be convinced. The Textual Commentary will, therefore, avoid introducing anything which they may feel bound to object to.

There is another class of constitutional lawyers, who regard the intentions of the Framers as matters of great weight in expounding the constitution, They must be numerous; for they include Story, who did not hesitate to make free use of the Journal of the Convention. Madison's Debates he could not use; for they were made public after the first edition of his Commentaries, which was the only one published in his lifetime. The gentlemen of this school of

opinion naturally expect that the debates and proceedings of the convention should be carefully studied. Their expectations can not, under the circumstances, be disappointed. They will find that the writer's exposition of the Framers' intentions, and his exposition of the meaning of the text, are supplementary to each other. While both are separate from and independent of each other, they are in harmony and are so written that they may be readily compared together and fitted to each other. The hope of meeting the requirements of two such different classes of readers is, therefore, entertained.

It is also hoped that those readers will be satisfied, who regard the proceedings and debates of the Framers as, it would appear, the U. S. Supreme Court regards them. In Juilliard v. Greenman, on page 444 of 110 U. S. Reports, the court only goes so far as to maintain that "too much weight" should not be given to the debates and votes in the convention upon such a question as that before them. In Hauenstein v. Lynham in 10 Otto, 489, the court says, in discussing Ware v. Hylton, 3 Dallas, 199:

"We have quoted from the opinion of Mr. Justice Chase "in that case, not because we concur in everything said in "the extract, but because it shows the views of a powerful "legal mind at that early period, when the debates in the "convention which framed the constitution must have been 'fresh in the memory of the leading jurists of the country." This is said of Judge Chase's opinion, although it was delivered before the proceedings and debates of the Framers were published in any form, and although he was not a member of the convention.

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No. 8.

Further observations upon the Textual Commentary. According to Mr. H. C. Lodge, there were formerly two modes of interpreting the constitution, but now one of them has become obsolete.* According to Judge Baldwin, there are three modes.+ Possibly there are four or more. It is,

* In the preface to his edition of Hamilton's Works.

† Constitutional Views, 36, 37.

however, unnecessary here to enter into so general a question. Remarks upon certain particular points are alone necessary.

First. This Essay is a legal treatise. It is intended for "the learned reader," to whom Story addresses his Commentaries: see his volume 2, page 430, first edition.

Secondly. The frequent reference to foreign laws herein made is absolutely necessary in a work so intimately related to the opinion in the case of Juilliard v. Greenman as hereinbefore mentioned. That opinion appeals to foreign notions of powers belonging to sovereignty, in order to interpret the constitution upon a disputed question of the greatest moment. The writer is compelled to do likewise. Unknown quantities of sovereignty introduced from abroad must become known; for, under the circumstances previously mentioned, they cannot be disregarded. Whether writers upon all other heads of constitutional law are, or are not, bound to do likewise since Juilliard v. Greenman, is a question which need not be discussed.

Thirdly. Some remarks will be made as to the words, "constitutional," and "unconstitutional," the last of which is on the title page of this Essay. Neither adjective is found in the constitution. The adverb, "constitutionally," is, however, found at the end of the 12th amendment: "no "person constitutionally ineligible to the office of President "shall be eligible to that of Vice President of the United "States." A collation of this text with paragraph 5 of section 1. II. shows that the use of the adverb "constitutionally" is not to be restricted to the cases arising under the constitution which are of a judicial nature. It must also be used in cases whose nature is extrajudicial. What is true of that adverb ought consequently to be true of the adjectives "constitutional" and "unconstitutional."

In the following pages the words "constitutional" and "unconstitutional" are applied, in a federal sense, both to congressional legislation and to state legislation. In these two cases, the precise meanings of the words, according to the strict text, are not identical. The use of the two words, as general terms applicable in both cases, is, however, prac

tically indispensable in discussion. It is theoretically unobjectionable, if the precise differences of meaning in each case be ascertained in the course of the commentary upon the text. Although the word "unconstitutional" is of English origin, and was applied in America to acts of parliament during the colonial period, such as the stamp act, these circumstances have not prevented its general use since then, under political systems very different from the English, but called also by the name of constitutions. There is, however, no difficulty about such a use of the word "unconstitutional." At least there is none, as long as a word like "extraconstitutional," is not contrasted with it.

No. 9.

Of the opinion in Marbury v. Madison and its relation to the Textual Commentary.

The view maintained in the Textual Commentary is directly opposed to that of Mr. McMurtrie and those who agree with him. Mr. McMurtrie categorically asserts that the power of a judicial court to declare a law unconstitutional and void, is based exclusively upon inference and implication. At the same time, he maintains that such a power is so fully and thoroughly proved to be constitutional and legal by the opinion in Marbury v. Madison, that no sane man can doubt the correctness of Chief Justice Marshall's reasoning therein. It is, therefore, here necessary to ask the question whether it is correct to say that Marshall's conclusion in favour of such a power is based exclusively upon inference and implication, and not upon the express import of texts in the constitution?

To this question, it is first answered that Mr. McMurtrie's opinion is the general one. Thus, Kent evidently takes it for granted that Marshall's reasoning is of the nature attributed to it by Mr. McMurtrie. Kent's view of the Chief Justice's reasoning on the judicial competency in question is certainly that it consists of inference and is not based upon expressage of constitutional texts. The case of Marbury . Madison is reviewed twice in his Commenta