v.

hibited and acts allowed, are of equal obligation. It is a MARBURÝ propofition too plain to be contefted, that the conftitution controls any legislative act repugnant to it; or, that the MADISON. legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The conftitution is either a fuperior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature fhall please to alter it.

If the former part of the alternative be true, then a legiflative act contrary to the conftitution is not law: if the latter part be true, then written conftitutions are abfurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

Certainly all those who have framed written conftitutions contemplate them as forming the fundamental and paramount law of the nation, and confequently the theory of every fuch government muft be, that an act of the legislature, repugnant to the conftitution, is void.

This theory is effentially attached to a written conftitution, and is confequently to be confidered, by this court, as one of the fundamental principles of our fociety. It is not therefore to be loft fight of in the further confideration of this subject.

If an act of the legislature, repugnant to the conftitution, 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 conftitute 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 grofs to be infifted on. It fhall, however, receive a more attentive

confideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cafes, muft of neceflity expound and interpret that rule. If two laws conflict with each other, the courts muft decide on the operation of each.

Ꮓ

MARBURY

v.

So if a law be in oppofition to the conftitution; if both the law and the constitution apply to a particular MADISON. cafe, fo that the court muft either decide that cafe conformably to the law, difregarding the constitution; or conformably to the conftitution, difregarding the law; the court must determime which of these conflicting rules governs the cafe. This is of the very effence of judicial duty.

If then the courts are to regard the conftitution; and the constitution is fuperior to any ordinary act of the legislature; the conftitution, and not fuch ordinary act, must govern the cafe to which they both apply.

Those then who controvert the principle that the conAtitution is to be confidered, in court, as a paramount law, are reduced to the neceflity of maintaining that courts muft close their eyes on the conftitution, and fee only

the law.

This doctrine would fubvert the very foundation of all written conftitutions. 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 legiflature shall do what is exprefsly forbiden, fuch act, notwithstanding the exprefs prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the fame breath which profeffes to restrict their powers within narrow limits. It is prefcribing limits, and declaring that thofe limits may be paffed at pleasure.

That it thus reduces to nothing what we have deemed the greateft improvement on political inftitutions-a written conftitution-would of itself be fufficient, in America, where written conftitutions have been viewed with so much reverence, for rejecting the conftruction. But the peculiar expreffions of the conftitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cafes arifing under the constitution.

Could it be the intention of those who gave this pow- MARBURY er, to say that, in ufing it, the conftitution fhould not

V.

be looked into? That a cafe arifing under the conftitu- MADISON. tion fhould be decided without examining the inftrument under which it arises?

This is too extravagant to be maintained.

In fome cafes then, the conftitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

There are many other parts of the conftitution which ferve to illuftrate this fubject.

It is declared that "no tax or duty fhall be laid on arti"cles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a fuit inftituted to recover it. Ought judgment to be rendered in such a cafe? ought the judges to close their eyes on the constitution, and only fee the law.

The conftitution declares that "no bill of attainder or "ex poft facto law shall be paffed."

If, however, fuch a bill fhould be paffed and a perfon fhould be profecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve ?

"No perfon," fays the constitution, " shall be convicted "of treafon unless on the teftimony of two witnesses to "the fame overt act, or on confeffion in open court.”

Here the language of the conftitution is addreffed efpecially to the courts. It prefcribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witnefs, or a confeffion out of court, fufficient for conviction, must the conftitutional principle yield to the legislative act?

From thefe, and many other felections which might be made, it is apparent, that the framers of the confti

MARBURY tution contemplated that inftrument, as a rule for the government of courts, as well as of the legislature.

V.

MADISON.

Why otherwife does it direct the judges to take an oath to fupport 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 inftruments, and the knowing inftruments, for violating what they fwear to fupport!

The oath of office, too, imposed by the legislature, is completely demonftrative of the legislative opinion on this fubject. It is in these words, "I do folemnly "fwear that I will administer justice without respect "to perfons, 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

accord

"ing to the best of my abilities and understanding, agree"ably to the conftitution, and laws of the United States."

Why does a judge fwear to discharge his duties agreably to the constitution of the United States, if that conftitution forms no rule for his government? if it is closed upon him, and cannot be infpected by him?

If fuch be the real ftate of things, this is worse than folemn mockery. To prefcribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the fupreme law of the land, the conftitution itself is firft mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the conftitution, have that rank.

Thus, the particular phrafeology of the constitution of the United States confirms and ftrengthens the principle, supposed to be effential to all written conftitutions, that a law repugnant to the conftitution is void; and that courts, as well as other departments, are bound by that inftrument.

The rule must be discharged.

ERROR from the circuit court of the district In Virginia it is

of Columbia, fitting in the county of Alexandria.

This was an action on the cafe for goods fold and delivered by Young and co. to Clark. The declaration had three counts; one for the price of the goods; one on a quantum valebant ; and one for money had and received.

not abfolutely necessary, in all cafes, to fue the maker of a promiffory note, to entitle the hold

er to an action against the indorfer.

The cause came on to be tried in the court below, on If a promiffory

the general iffue, at April term 1802.

note of a third perfon be in

dorfed by the

ment for the

vender is, in

he can refort to

The facts, on the trial, appeared to be, that on the 9th purchaser of of September, 1794, Young and co. fold to Clark 400 goods to the bushels of falt, at 4/3 per bufhel, amounting to 283 dol- vender, as a conditional paylars and 33 cents. At the time of the fale and delivery of the falt, Clark affigned to Young and co. a negociable goods; Quere, promiffory note, made by one Mark Edgar to Pickersgill Whether the and co. and by them indorsed to Clark, dated September any cafe, oblig5th, 1794, for 289 dollars, payable 60 days after date, ed to fue the at the bank of Alexandria. That Young and co. infti- maker of the tuted a fuit in Fairfax county court, in Virginia, against note before Clark, on his indorsement of this note; upon the trial the purchaser of which caufe, Clark, by his counsel, "prayed the opi- of the goods "nion of the court, whether the plaintiffs could maintain on the original "their action against him, previous to their having com- A fuit against "menced a fuit and obtained judgment against the draw- the defendant as "er, or maker of the note; and until his infolvency indorfer of the "should appear;"" and the court gave it as their opi- note, and a fuit "nion that they could not; and directed the jury ac- fendant for the against the de"cordingly." Whereupon, a verdict was found for the goods fold, are defendant. It alfo appeared that at the time the note upon diftin&t was indorsed by Clark to Young and co. as well as at the causes of action; time when it became payable, Mark Edgar, the drawer and the first of the note, was in bad circumstances, and was fuppofed cannot be pleadand reputed to be infolvent. And that about the middle ed in bar of or laft of December, 1794, he left Alexandria, and had never returned to it.

contract of fale?

and different

the second.

It is not ne

ceffary for the