"It is declared that 'no tax or duty shall be laid on arti"cles 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 consti"tution, and only see the law?"

That is to say, the truth of his meaning of another text is inferred, because, if the contrary be assumed true, an absurdity must be inferred.

"The constitution declares that no bill of attainder or "ex postfacto 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 endeavours "to preserve?""

That is to say, the truth of his meaning of another text, or rather two other texts, is inferred, because, if the contrary be assumed true, an absurdity must be inferred.

"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.'

666

"Here the language of the constitution is addressed es"pecially to the courts. It prescribes directly for them, a "rule of evidence not to be departed from. If the legisla"ture 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?"

For this purpose, this text is the strongest of those adduced. The answer to its concluding question, however, makes the reasoning a reductio ad absurdum. Thus, it is upon inference only that he relies, to prove that courts are bound to say that an act of Congress is void because conflicting with the constitutional text under consideration. In other words, his proposition that the judicial courts are especially addressed by the text, is affirmed as inferred from the text itself, not as expressed in it. He confines his attention exclusively to the contents of the clause, without alluding to its location in the whole text, or its relations to other clauses. The contents of the clause include no mention whatsoever of the judges of the United States courts, while paragraph 2. VI. after mentioning the constitution and certain other written instruments, expressly mentions

state judges as bound thereby: "and the judges in every "state shall be bound thereby." This present clause does not contain any words such as "the judges of the courts of "the United States shall be bound thereby." In the case of this text upon treason, the question whether it does or does not bind the judicial department as against an act of Congress decides whether the violation thereof results in constitutional grievances to be redressed by petition to the government, or in legal wrongs to be redressed by judicial proceedings.

On this point, Iredell's argument, reprinted in chapter 26 of this Essay, may be consulted as to any written constitution whatsoever.

Marshall's observations on the text in question are of much importance as a very early example of the theory of the address of clauses in a written constitution. The mem

orable habeas corpus controversy, in which Binney played a leading part, will be recalled in this connection. Whether the habeas corpus clause of the U. S. constitution was addressed to Congress or to the executive power, was regarded by many persons as an open question.

Divisions B., C. and D. of chapter 9 following, are also of interest in this connection, and show how two German supreme courts differed as to what a disciple of Marshall would call the address of a clause in the written constitution of the State of Bremen. That clause prescribed that well-acquired rights should not be injured. The late Hanseatic Court of Upper Appeal decided that certain legislation conflicted with the said clause, and held it therefore void. Subsequently, the new Imperial Tribunal of the German Empire decided that the same clause was to be understood merely as a rule for the legislative power itself to interpret, and did not mean that a command of that power could be disregarded by the judiciary, because injurious to well-acquired rights. It thus held that the clause was exclusively addressed to the legislature, a proposition which must be denied by any one affirming the truth of the Hanseatic decision. Compare Georgia v. Stanton, 6 Wallace 50. The cited text upon treason can not bind any judicial

court in a case of conflict between it and an act of Congress, unless it be a judicial question whether a challenged act of Congress be constitutional or unconstitutional and valid or void accordingly. If it be an extrajudicial question no court can, of course, decide it. The said text may imply, but certainly does not express, the proposition that the said question is a judicial and not an extrajudicial one. Neither does any one of the other texts expounded by Marshall expressly assert that proposition, if his exposition thereof be correct. According to Marshall's reasoning, that question can only be inferred to be a judicial, and not an extrajudicial one. The cited text upon treason could, therefore, be only inferred by him to bind the judicial department in the said cases of conflict. The writer, of course, maintains that it binds the judiciary in all cases; but at the same time contends that the said question is expressly made a judicial one by other texts of the constitution.

"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 govern"ment of courts as well as of the legislature."

This language imports, inter alia, that the constitution is a rule for the government of courts, to the extent that it is a judicial and not an extrajudicial question, whether an act of Congress be repugnant to the constitution or not. Such a proposition is correct, but as far as Marshall is concerned, it is purely an inference from the constitution as commented upon by him.

All the previous conclusions from texts actually selected, have been shown to be inferred therefrom, not expressly imported thereby. None of the "many other selections "which might be made" from the constitution, are mentioned. What texts they may be, can only be conjectured. They are omitted quotations, and this last conclusion is merely matter of inference like its predecessors.

"Why 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 violat"ing what they swear to support ?”

That this is merely inference, is clear from a collation of the text of paragraph 3. VI. with that of the end of section 1. II. There is nothing special to his office expressed in the constitutional oath required of a judge, while the only special oath of office prescribed by the constitution is the President's. The former text requires senators and representatives, members of the state legislatures and the executive and judicial officers of the United States, and of the several states, to be bound by oath "to support this consti"tution." The latter text requires the President to swear that he will faithfully execute his office, and will to the best of his ability "preserve, protect and defend the constitution of "the United States."

"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 -, according to the best of my "abilities and understanding, agreeably to the constitution "and laws of the United States.'

"Why does a judge swear to discharge his duties agree"ably to the constitution of the United States, if that con"stitution forms no rule for his government? if it is closed "upon him, and can not be inspected by him.

"If such be the real state of things, this is worse than sol"emn mockery. To prescribe, or to take this oath, becomes "equally a crime."

The above conclusions are merely inferred from an inference made by Congress.

"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."

It is of the highest importance to observe that the above comment upon the text of paragraph 2. VI. is said to be only "not entirely unworthy of observation." The lesson can

only be inference, for, if he held it to be the express import of the words, he would certainly have thought the comment entirely worthy of observation.

"Thus, the particular phraseology of the constitution "of the United States confirms and strengthens the principle, "supposed to be essential to all written constitutions, that "a law repugnant to the constitution is void, and that courts, "as well as other departments, are bound by that instru"ment."

That is to say, his essential principle of all written constitutions is supposed only; supposed, it is true, because it is contrary to reason to do otherwise. There is, however, nothing in the text of the constitution, as he expounds it, expressly asserting it. The peculiar phraseology of the constitution "confirms and strengthens" the principle, but does not express it.

No. 4.

Conclusion drawn from the foregoing review.

The foregoing review, it is contended, makes it evident that Mr. McMurtrie is correct in his emphatic assertion as to the nature of Marshall's reasoning on the constitutional question in Marbury v. Madison. That is to say, he is entirely correct in affirming that the said reasoning proceeds exclusively upon implication and inference in drawing the conclusion that a judicial court can declare a law to be unconstitutional and void.

It is a consequence of this conclusion being true, that any writer who maintains that such a judicial competency is matter of express import according to the constitutional text, must proceed otherwise than Marshall, and must reason upon a basis different from the opinion in Marbury v. Madi

son.