can be exercised by them only with the consent, or under the control of congress; and powers which are prohibited to both the federal and state governments.

From these views it will be seen, and it logically and necessarily follows, that all other powers of government, compatible with the nature and principle of democratic governments, which are not prohibited by the bill of rights, or constitutions of the respective states, remain with such states or with the people thereof, and may be exercised by them, respectively in such manner, as their several laws and constitutions may permit or direct.

Subject to the limitations contained in the federal and state constitutions, the legislative power in the state of New York, (and it is believed to be the same in every other independent state), is not restricted in its power to enact laws, any more than is the British parliament. a In this respect the legislature is the direct representative of the people, and the depository of their power.

Statutes, or laws, under such a form of government, must therefore be made in conformity with the requirements of written constitutions. If the forms prescribed by the constitution have not been observed, or the power has not been delegated to the legislative body, the act is unconstitutional and void.

A constitutional law, is one made by the legislative power properly organized according to the requirements of the constitution. Such a statute, is binding upon all the people, citizens and others, who are within the territorial jurisdiction of the legislature, b and it is the duty of the executive department to see that such a law is faithfully executed.

An unconstitutional law, (if such can be called law,) is one made in contravention of the powers of the constitution, and for that reason it is absolutely void, because the constitution, which is the supreme and fundamental law of the land;-having greater force than any statute, c such a law, the executive is not bound to see enforced.

The courts possess the power, and it is their duty when a law is

a People v. Morrell, 21 Wend. 563; Butler v. Palmer, 1 Hill. 324; Bloodgood ▼. Mohawk & Hudson R. R. Co., 18 Wend. 9; Sill v. Village of Corning, 15 N. Y. R. 300; People v. Draper, id. 549.

unconstitutional, to declare it to be so. They will however be careful not so to declare it, except the case be very clear. The determination of this question, is always a question of power, that is, whether the legislature in the particular case, in respect to the subject matter of the act; the manner in which its object is to be accomplished, and the mode of enacting it; has kept within the constitutional limits; and whether the law-makers have observed the constitutional conditions. a If these conditions and limitations have been observed by the law-making power, the courts will not enquire further; they will assume that the legislative discretion has been properly exercised. If the power to pass the law should depend upon extrinsic facts, the court will presume that such facts were before the legislature when the act was passed; nor will the courts ever enquire into the motives of the legislature where fraud and corruption are charged, and annul their action, or the statute, if the charge be proved true. b

In analogy to the system of Great Britain, and with the views of the omnipotent power of the English parliament, it was at an early day claimed by many, unfamiliar with the American theory of government; of written constitutions; and of a distribution of the sovereign power into departments; that the judicial department possessed no power to declare a statute void, even though its enactment was in conflict with express inhibitions of power contained in constitutions. These views were set at rest by the judicial power upon the earliest occasion.

Chief Justice Marshall, in giving his views on this subject, has done it so clearly, and so tersely, that to transcribe them, gives much better expression to the same ideas than we could give in our own language; we therefore copy them (with slight changes,) and adopt them. c He says, "The question, whether an act repugnant to written constitutions can become the law of the land, is a question deeply interesting to the people of the United States; but, happily, not of an intricacy proportioned to its interest. It seems necessary only to recognize certain principles, supposed to have been long and well established, to decide it." That the people had an original right to establish, for their b People v. Draper, 15 New York, R. 545

a Cooley v. Const. Lim. 186, 7.

c Marbury v. Madison 1, Cranch. 68, 70.

future government, such principles, as, in their opinion, should most conduce to their own happiness, is the basis upon 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 fundamental. 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 government, and assigns to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States, (and the government of the several states,) is of the latter description. The powers of the legislatures are defined and limited, and that those limits may not be mistaken or forgotten, the constitutions are 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 composed, and, if acts prohibited, and acts allowed, are of 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 acts, and 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 (state,) 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 con

stitution, and is consequently to be considered by courts as one of the fundamental principles of our society. It is not therefore to be lost sight of, in the further consideration of the 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 it would seem, at first view, an absurdity, too gross to be insisted on. It shall however, receive a more attentive consideration.

It is emphatically the duty and province 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 be in opposition to the constitution ; if both be the law, and the constitution apply to a particular case, so that the court must either decide that case, conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is 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 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 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 it thus reduces to noth

ing, 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.

It has been regarded as curious, that in the absence of any express provision in the constitutions, or the statutes of the nation or states, that the judiciary should have assumed to exercise this extraordinary power, of checking the legislature in the exercise of their powers, to the extent of declaring statutes to be null and void when passed in violation of constitutional restrictions. But this has ever been regarded as an inherent power in the judicial department; a power that they have steadily, and sometimes vigorously exercised from the earliest days of the republics; and the exercise of the power, if not always conceded, has been universally acquiesed in as an admitted right. The judicial power of the government is conferred upon the courts. This includes all judicial power, and includes by implication, the power in question. By virtue of this power, the courts decide in all cases brought before them, what the true construction of a doubtful constitutional provision is, and when legislative acts are brought before them, they decide whether its provisions, or any of them, are infractions of the constitution. If their decision is, that the act is unconstitutional it destroys its vitality, and puts an end to all proceedings under it. The importance of this feature in our system, and its bearing on the character of the judicial department, is at once apparent. It limits the power of the legislature; it erects the judiciary at once, as was intended, into a co-ordinate department, and political authority in the government; it practically associates them with the law-making branch; it has had a very marked effect upon the character of the legal mind, and education of the country; and it has established in itself a degree of confidence and respect, to which the citizen looks as his best security. It has elevated the bar, by stimulating them to the highest professional efforts; and to persevering study and research; it has made judges themselves ambitious to master and declare the great principles of the government, and of American jurisprudence; and it has given a depth and breadth, and dignity, to discussions upon great legal and constitutional questions.