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 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 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 legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, 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 nothing 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. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution 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 constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles 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 constitution, and only see the law?

The constitution declares "that no bill of attainder or ex post facto 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 endeavors to preserve?

"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."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature 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?

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 government of courts, as well as of the legislature.

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 violating what they swear to support!

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 agreeably to the constitution of the United States, if that constitution forms no rule for his government-if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn

mockery. To prescribe, or to take this oath, becomes equally a crime.

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.

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 instrument.

The rule must be discharged.

NOTE. The principle that the courts have authority to pass upon the validity of legislation had been asserted in at least five States before the adoption of the Constitution,-viz., in Holmes v. Walton, in New Jersey, 1780; in Commonwealth v. Caton, in Virginia, in 1782; in Rutgers v. Waddington, in New York, in 1784; in Trevett v. Weeden, in Rhode Island, in 1786; and in Bayard v. Singleton, in North Carolina, in 1787. All these cases save the first are printed in Thayer's Cases, I, 55-80. In 1792 the Supreme Court of South Carolina, in the case of Bowman v. Middleton (1 Bay., 252), declared that an act passed by the Colonial Legislature in 1712, which took away the freehold of one man and vested it in another without any compensation or even a trial by the jury of the country, was "against common right, as well as against Magna Charta," and "therefore ipso facto void." For a valuable discussion of these early constitutional cases, see an article on "The Relation of the Judiciary to the Constitution," by W. M. Meigs, in American Law Review, xix, 175 (1885). See also Coxe, The Judicial Power and Unconstitutional Legislation, 219-271. A most admirable discussion of the whole question is found in an article on "The Origin and Scope of the American Doctrine of Constitutional Law," by Prof. James B. Thayer, in Harvard Law Review, vii, 129 (1893). For an adverse view of the power of the courts over unconstitutional legislation, see Eakin v. Raub, 12 Sergeant and Rawle (Pennsylvania), 330, also printed in Thayer's Cases, I, 133. A list of cases in which the Federal Supreme Court has declared statutes or parts of statutes invalid is given in 131 U. S. Appendix, ccxxxv. The list is incomplete, one of the most conspicuous omissions being the Dred Scott case.

"The interpretation of the laws is the proper and peculiar prov

ince of the courts. A Constitution is, in fact, and must be regarded by the Judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the Constitution ought to be preferred to the statutes, the intention of the people to the intention of their agents." Hamilton, in The Federalist, No. 78.

"If they [the government of the United States] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void." John Marshall, in the Virginia Convention of 1788, Elliot's Debates, III, 553.

"To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." James Wilson, in the Pennsylvania Convention of 1787, Elliot's Debates, II, 432.

I

85-91

II. TAXATION.

HYLTON v. THE UNITED STATES.

3 Dallas, 171. Decided 1796.

This was a writ of error to the circuit court of the United States for the district of Virginia. The question raised, and all the facts necessary to be adverted to, appear in the opinions of the members of the court.

The court delivered these opinions seriatim, in the following terms.1

CHASE, J. By the case stated, only one question is submitted to the opinion of this court: Whether the law of congress of the 5th of June, 1794 (1 U. S. Stat. at Large, 373), entitled, "An act to lay duties upon carriages for the conveyance of persons," is unconstitutional and void?

The principles laid down to prove the above law void, are these: That a tax on carriages is a direct tax, and therefore, by the constitution, must be laid according to the census directed by the constitution to be taken, to ascertain the number of representatives from each State. And that the tax in question, on carriages, is not laid by that rule of apportionment, but by the rule of uniformity, prescribed by the constitution in the case of duties, imposts, and excises; and a tax on carriages is not within either of those descriptions.

The constitution evidently contemplated no taxes as direct taxes, but only such as congress could lay in proportion to the census. The rule of apportionment is only to be adopted in such cases where it can reasonably apply; and the subject taxed must ever determine the application of the rule.

If it is proposed to tax any specific article by the rule of apportionment, and it would certainly create great inequality and injustice, it is unreasonable to say that the constitution intended such. tax should be laid by that rule.

1 The Chief Justice, Ellsworth, was sworn into office in the morning; but not having heard the

whole of the argument, he declined taking any part in the decision of this cause.