ries, Ed. 1, Vol. 1, 424 and 301. On page 424, he ob

serves:

"In Marbury c. Madison, the subject was brought under "the consideration 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 unconsti"tutional act of Congress, or of any state legislature, were "declared in an argument approaching to the precision "and certainty of a mathematical demonstration."

The precision and certainty of a mathematical demonstration, of course, means inference and not a reliance upon express texts.

After careful study of Marshall's reasoning, the writer fully assents to Mr. McMurtrie's proposition, that that reasoning is exclusively based on implication and inference. So far, at least, he fully agrees with Mr. McMurtrie. The relation which such a proposition bears to the plan of this Essay is, however, too important for it to be accepted as true, without a new and special examination of the reasoning of Marshall. Moreover, another consideration exists, which of itself is more than sufficient to justify any reader in refusing assent to Mr. McMurtrie's proposition, without a special investigation of its truth. This second consideration

is based upon an observation of Marshall's at the bar in Ware v. Hylton, on page 211 of 3 Dallas.

In that case, as counsel for the defendant, Marshall said: "The legislative authority of any country can only be re"strained by its own municipal constitution: This is a "principle that springs from the very nature of society; "and the judicial authority can have no right to question "the validity of a law, unless such a jurisdiction is expressly "given by the constitution." Thus, at a date anterior to Marbury v. Madison, if Marshall's words be taken literally, he held that the jurisdiction in question could not be implied; and thought, as, it seems to the writer, Mr. McMurtrie must have thought, if the opinion in that case had never been written.

It is, therefore, doubly necessary to make a careful and detailed examination of Marshall's reasoning in that part

of the opinion in Marbury v. Madison, which relates to the constitutional question. This task will be undertaken in the next and final chapter of this Introduction.

CHAPTER V.

Of that part of the opinion in Marbury v. Madison, which treats of the constitutional question.

No. 1. Review of that part of the opinion

No. 2. Continuation.

No. 3. Continuation.

No. 4. Conclusion drawn from the foregoing review. No. 5. A further consideration of Marshall's observation in Ware v. Hylton.

This chapter will consist of a review of that part of the opinion in Marbury v. Madison, which is devoted to the consideration of the constitutional question involved in the

case.

No. 1.

Review of that part of the opinion in Marbury v. Madison, which treats of the constitutional question.

That part of the opinion in Marbury v. Madison, which is now reviewed, is found on pages 176-180 of 1 Cranch and begins thus:

"The question, whether an act repugnant to the consti"tution, 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 recognize certain principles, supposed to have "been long and well established, to decide it.

Here Marshall puts what he holds to be the question at issue. As he states that question, it is whether an act of Congress repugnant to the constitution can become the law of the land. He does not say one of "the laws of the Union," which words are used in clause 15 of Section 8, I. The words "law of the land" are only to be found in paragraph 2, VI.* He then proceeds to the general portion of this part of the opinion.

"That the people have an original right to establish, for "their future government, such principles as, in their opin"ion, 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 it nor ought it to be frequently repeated. The "principles, therefore, so established are deemed funda"mental. And as the authority, from which they proceed "is supreme, and can seldom act, they are designed to be "permanent.

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

The above propositions are postulates to be used in making the inferences following. They do not contain quotations from the text of the constitution. Their only relation to that text is that of things presumed or presupposed thereby. Such presumptions are not things expressly mentioned in the text of the constitution.

"The 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.'

This is a postulate to be used in making the inferences following. No text of the constitution is quoted. That it depends upon inference, and not upon the express meaning of texts, is shown in No. 2 of this chapter.

*Is an act of Congress repugnant to the constitution in the following case? Its contents are not repugnant to the constitution. It is, however, a question whether it has been passed according to the forms prescribed by the constitution. If this question be answered in the negative, the act of Congress is certainly unconstitutional; but is such unconstitutionality covered by the phrase "repugnant to the constitution."

"To what purpose are powers limited, and to what pur'pose is that limitation committed to writing; if these lim"its 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 obli"gation. 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, un"changeable by ordinary means, or it is on a level with or"dinary legislative acts, and like other acts, is alterable "when the legislature shall please to alter it."

This is a dilemma, at which the reasoning has arrived, by proceeding through a series of inferences from the postulates above mentioned.

"If the former part of the alternative be true, then a leg"islative 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."

That is to say, if the first horn of the dilemma be assumed to be true, it must be inferred that an unconstitutional act of legislation is not law; but if the second horn be assumed to be true, a conclusion must necessarily be inferred, which reduces such an assumption to an absurdity.

"Certainly all those who have framed written constitu"tions 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 passage first asserts a fact, and then infers a theory therefrom, upon which comment will be made presently.

"This theory is essentially attached to a written consti"tution, 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 considera"tion of this subject.

"If an act of the legislature, repugnant to the constitu"tion, 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 consideration." That is to say, the inference so made is one which seems an absurdity. In the passage immediately following, he proceeds to demonstrate that this absurdity is not merely apparent, but real and certain.

"It is emphatically the province and duty of the judic "ial department to say what the law is. Those who ap"ply 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.

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"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 either decide that case con"formably to law, disregarding the constitution; or con"formably to the constitution, disregarding the law: the "court must determine which of these conflicting rules govern "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 leg"islature; the constitution, and not such ordinary act, must "govern the case to which they both apply.

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Those then who controvert the principle that the con"stitution 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.

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"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 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 is to say, the apparent absurdity above mentioned is, after full consideration, inferred by demonstration to be actually the gross absurdity that it seemed to be, at the first view of it. "That it thus reduces to nothing what

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