No. 5.

A further consideration of Marshall's observation in Ware v. Hylton.

It is another consequence of the foregoing conclusion that Marshall changed his mind between the dates of Ware v. Hylton and Marbury v. Madison, if his observation at the bar in the former case is to be taken literally. If that observation be so taken, he then thought that in every country the judicial power had no right to question the validity of a law on constitutional grounds, unless such a jurisdiction was expressly given by the constitution.

Whether Marshall's language in Ware v. Hylton is to be taken literally is a very interesting question in legal history. It is one which ought not to be answered without further consideration.

In the first place, Dallas, in the note on his page 207, expressly says, that he was not present at the argument, that he was disappointed in obtaining from counsel their briefs, and that he used the notes of a member of the bar who had been in court when they spoke. These volunteer notes, it may, perhaps, be presumed, were not made with a view to reporting the case in print. Anyhow, the reporter's printed foot-note shows that Marshall was not bound by the letter of the printed report of his argument on any point on which a more probable statement can be presented.

Can such more probable statement be presented? The answer to this question depends upon the history of the North Carolinian case of Bayard v. Singleton, which is the first reported case under a written constitution in which a law was decided unconstitutional and held therefore void. It is involved in the discussion of the present question in this wise. Among the judges whom Marshall addressed in Ware v. Hylton, was Iredell. That eminent jurist, as counsel in Bayard . Singleton, led the way to the court's decision therein. His important place in the judicial history of written constitutions will fully appear when Bayard v. Singleton is rehearsed in chapter 26 of this Essay.

Marshall said, according to the report of Ware v. Hylton : "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." So far there is no difficulty in understanding or interpreting the words. As reported, he then added: "unless such a jurisdiction is expressly given by "the constitution." Now the history of Bayard v. Singleton will show that he must have contradicted Iredell's historical position in constitutional law, if he meant: unless such a jurisdiction is given by the constitution expressly saying that the judicial authority has the right to question the validity of a law when it is made in contradiction to constitutional restraints of legislative authority. But he agreed with Iredell's historical position, if he meant: unless such a jurisdiction is given by the constitution expressly restraining the legislative authority so as to make it a limited and not an omnipotent one.

It must be assumed that Marshall knew who the judges were whom he addressed, and what their legal biographies were. He could not have differed with Iredell on such a question, without knowing that he did so, and meaning to do so. If he did not mean to differ with him, he thought that when a written constitution expressly restrained the legislative authority, such express restraint of legislation was the basis of an implied judicial right to question the validity of a law made in contradiction thereof. A legislative authority expressly limited by the constitution implied a corresponding jurisdiction in the judicial authority. This is what Iredell meant by the term, "express constitution," used by him in 1787, in a letter addressed to a Framer of the constitution, while the convention was in session. According to Iredell's view of the law of constitutions, the constitution of North Carolina was, and the British constitution was not, such "an express constitution."*

* See Life of Iredell, vol. 2, page 172, line 9 from bottom, and page 146, line 1 from bottom, both of which texts are reprinted in chapter 26, post, in the account of Bayard v. Singleton.

If the words actually used by Marshall were not those of the report, and were such as agreed with Iredell's position, he must have used language like the following: "unless "such a jurisdiction is given by the constitution expressly “restraining the legislative authority," or, "unless such a "jurisdiction is given by an express constitution." If Marshall used such words, or others of identical meaning, he did not change his mind between the dates of Ware v. Hylton and Marbury v. Madison. It is for the reader to decide. whether any such conjecture is good ground for an emendation of the report of Marshall's argument at the bar in the former case.

Certain it is that Iredell actually denied the truth of what is written in the first column below, but not the truth of what is written in the second.

Marshall's words as reported.

Suggested emendation of the report of
Marshall's words.

"The legislative authority of any country, can only be restrained by its "own municipal constitution: This is "a principle that springs from the very

"The legislative authority of any "country can only be restrained by "its own municipal constitution: This "is a principle that springs from the very nature of society; and the judic-"nature of society; and the judicial "ial authority can have no right to "question the validity of a law, unless "such a jurisdiction is expressly given "by the constitution."

"authority can have no right to ques"tion the validity of a law, unless such “ a jurisdiction is given by an express "constitution."

By express constitution," Iredell meant one which was the direct opposite of the British constitution, because it restricted the legislature in express terms; see chapter 26, post, and Life of Iredell as cited in previous note.

INVESTIGATION OF FOREIGN LAWS ON JUDICIAL POWER AND ITS RELATION TO LEGISLATION CONTRARIANT TO A CONSTITUTIONAL OR OTHER RULE OF RIGHT.

PART II.

INVESTIGATION OF THE LAWS OF CERTAIN OF THE STATES ON THE RELATION OF JUDICIAL FOWER TO UNCONSTITUTIONAL LEGISLATION BEFORE AND DURING THE CONFEDERATION.

PART III.

OF THE HISTORICAL ANTECEDENTS OF THE TEXTS OF THE CONSTITUTION, WHICH ARE CONCERNED.

PART IV.

OF THE INTENTIONS OF THE FRAMERS OF THE CONSTITUTION ON THE RELATION OF JUDICIAL POWER TO UNCONSTITUTIONAL LEGISLATION.

HISTORICAL COMMENTARY.

PART I.

Part I. of the Historical Commentary will consider the subject in connection with certain important foreign laws past and present. It will include an investigation of the laws of certain European states and unions of states, and an examination of the Roman and Canon laws.

CHAPTER VI.

Preliminary.

No. 1. Preliminary as to England.

No. 2. Preliminary as to continental Europe.

This chapter will be concerned with considerations preliminary to the investigation of foreign laws.

No. 1.

Preliminary as to England.

It is correct to say that it is now law in England, and that it was law there long before 1776, that the judges of the courts are bound by acts of parliament in all cases according to the clear and clearly expressed intent of the legislature. When that intent is clear and clearly expressed,