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as a sword to coerce the state. The distinction seems to be a narrow one, and to result in injustice. It perhaps would be wise to repeal the Eleventh Amendment, and thus remove the temptation to extravagance and dishonesty which the power to repudiate presents.

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The power of the Supreme Court to declare an act of Congress void because not authorized by the Constitution, or in conflict with it, was first presented in 1792, under the act of Congress for the relief of pensioners, already referred to; but no decision was made. The question might be said to be settled by the decision that Congress could not assign nonjudicial duties to judicial officers. It was again discussed in 1796.2 Congress passed an act imposing a tax upon carriages. The Constitution provides that “ direct taxes shall be apportioned among the several states according to their respective numbers.” There were more carriages in that day in Virginia, in proportion to the population, than in any other state, and hence if the tax was a direct one, Virginia would pay more than her share. The Court held that it was not a direct tax, but rather an impost or excise, which the Constitution directs shall be uniform throughout the United States. The law was thus sustained. Mr. Justice Samuel Chase, in the course of his opinion, makes the following remarks: “ As I do not think the tax upon carriages is a direct tax, it is unnecessary for me at this time to determine whether this Court constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to and in violation of the Constitution ; but if the Court have such power, I am free to declare that I will never exercise it, but in a very clear case.”

But at the same term the Court, in the case of Ware v. Hylton, 4 decided that a statute of the State of Virginia, enacted before the treaty of peace between the United States and

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1 Hayburn's case, 2 Dallas, 409. 3 Art. 1, sec. 2.

2 Hylton v. United States, 3 Dallas, 171. 4 3 Dallas, 199.

Great Britain, was void, because the statute was contrary to the treaty, and the Constitution made the treaty the supreme law. The treaty therefore overruled the statute.

In the case of Calder v. Bull,in 1798, the point to be decided was whether a statute of Connecticut was not an ex post facto law, and therefore void as forbidden by the federal Constitution. The Court held it was not an ex post facto law, and thus escaped holding it void. Mr. Justice Chase, in giving the opinion of the Court, used these words: “ All the powers delegated by the people of the United States to the federal government are defined, and no constructive powers can be exercised by it.” Justice Chase then was, or afterwards became, an ardent and pronounced champion of the supreme powers of the general government. His arbitrary conduct and partisan speeches at the circuit courts in which he presided, and his rulings upon the trial of offenders against the odious sedition laws, so exasperated the Anti-Federalists that they procured his impeachment by Congress in the administration of President Jefferson. We may believe that his temperament was ill-suited for judicial fairness, but in ability he was more than a match for his accusers, and he easily escaped conviction when brought to trial. His dictum that no constructive powers can be exercised by the federal government is in. teresting evidence of contemporaneous opinion. It was soon repudiated by the Court, but remained the cardinal rule of constitutional construction of the Jeffersonian or democratic party, tlıough not always adhered to in practice.

In the case of Cooper v. Telsair, decided in 1800, Judge Chase said: “ It is indeed a general opinion, it is expressly admitted by all this bar, and some of the judges have individually in the circuits decided, that the Supreme Court can declare an act of Congress unconstitutional and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point. Although it is alleged that all acts of the legislature (of a state) in direct opposition to the prohibitions of the Constitution would be void, yet it still remains a question where the power resides to declare it void." It was not until 1803, fourteen years after the Constitution 1 3 Dallas 387.

2 4 Dallas, 14.

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went into operation, that the Supreme Court explicitly an-
nounced the doctrine that a law of Congress repugnant to the
Constitution is void. It was the case of Marbury v. Madison,
before referred to. The case was apparently an insignificant
one, but the doctrines enunciated are so important and so lu-
cidly expressed, and have been ever since so controlling as
authority, that it may without impropriety be somewhat fully
stated.

President Adams, just before the expiration of his term of
office, had appointed Mr. Marbury justice of the peace for
the District of Columbia, to hold office for five years. Jus-
tice Marbury's commission was duly made out during Mr.
Adams's incumbency, but was not delivered, and it passed,
upon President Adams's retirement, into the hands of Mr.
Madison, President Jefferson's new Secretary of State. The
reported case does not so recite, but history informs us, that
there was much gossip in those days about the “midnight
judges ” whom President Adams appointed the last night of
his term. If we credit this gossip, we may suppose there was
not time to deliver this commission to Mr. Marbury after it
was signed, and before the clock struck twelve, at midnight,
March 3, 1801. Mr. Marshall was President Adams's Sec-
retary of State, and continued for several weeks after his ele-
vation to the chief justiceship to discharge the duties of the
former office. It is not improbable that he delivered this
commission, as a part of the unadministered assets of the of-
fice, to Mr. Madison. Mr. Adams was a Federalist, and Mr.
Jefferson a Republican, as party names then went.
rate, Mr. Madison refused to deliver to Mr. Marbury his com-
mission, and Mr. Marbury made application to the Supreme
Court for a mandamus to compel Secretary Madison to de-
liver it to him. The Court held that Mr. Marbury was en-
titled to his commission; that Mr. Madison had no right to
withhold it; that a mandamus was a proper proceeding to com-
pel its delivery; but after bolding so much in favor of Mr.
Marbury and against the administration, it then held that
the Supreme Court had no power to issue the mandamus, and
therefore could not give Mr. Marbury any aid. One would
suppose that if the Court had no power to aid the claimant,

11 Cranch, 137.

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Great Britain, was void, because the statute was contrary to the treaty, and the Constitution made the treaty the supreme law. The treaty therefore overruled the statute.

In the case of Calder v. Bull,' in 1798, the point to be decided was whether a statute of Connecticut was not an er post facto law, and therefore void as forbidden by the federal Constitution. The Court held it was not an ex post facto law, and thus escaped holding it void. Mr. Justice Chase, in giving the opinion of the Court, used these words: “ All the powers delegated by the people of the United States to the federal gov. ernment are defined, and no constructive powers can be exercised by it.” Justice Chase then was, or afterwards became, an ardent and pronounced champion of the supreme powers of the general government. His arbitrary conduct and partisan speeches at the circuit courts in which he presided, and his rulings upon the trial of offenders against the odious sedition laws, so exasperated the Anti-Federalists that they procured his impeachment by Congress in the administration of President Jefferson. We may believe that his temperament was ill-suited for judicial fairness, but in ability he was more than a match for his accusers, and he easily escaped conviction when brought to trial. His dictum that no constructive powers can be exercised by the federal government is in. teresting evidence of contemporaneous opinion. It was soon repudiated by the Court, but remained the cardinal rule of constitutional construction of the Jeffersonian or democratic party, though not always adhered to in practice.

In the case of Cooper v. Telfair,2 decided in 1800, Judge Chase said: “It is indeed a general opinion, it is expressly admitted by all this bar, and some of the judges have individually in the circuits decided, that the Supreme Court can declare an act of Congress unconstitutional and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point. Although it is alleged that all acts of the legislature (of a state) in direct opposition to the prohibitions of the Constitution would be void, yet it still remains a question where the power resides to declare it void.” It was not until 1803, fourteen years after the Constitution

2 4 Dallas, 14.

1 3 Dallas 387.

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