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The Green Bag

the Constitution with the express under standing that the courts had the power to declare acts of Congress void. This view was entertained by all the great judges, statesmen and commentators of the time. Judge Story, who was one of the early members of the court, on that subject said: That this view of the Constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain. Again, there were many decisions of the Federal Courts at the Circuit, and some by the Supreme Court itself, before the celebrated case of Marbury v. Madison. The first of these cases was a decision by Justices Patterson and Pe ters of the Supreme Court of the United States, in which they expressly held an act of the legislature of Pennsylvania void, because in conflict with the Con stitution of that state. This decision was made in 1795. Before that, how ever, the same question had arisen in the Supreme Court of the United States, in what is known as Hayburn's case. With the exception of Mr. Justice John son, whose opinion is not known, the Supreme Court was of the unanimous opinion that the act of Congress in volved in that case was void, but the court found it unnecessary to decide the question, because Congress provided some other way for the allowance of pensions. These opinions are preserved in volume 2 of Dallas Reports in a note to Hayburn's case. The court expressly refused to obey the act of Congress, because it was in conflict with the Con stitution. This decision was in 1793, only four years after the court was organized. The question next arose in the Supreme Court in case of United States v. Todd, in 1794. The court had no official re porter at that time, and the opinion of

the court has not been preserved. How ever, the Court's judgment can only be sustained upon the theory that the act of Congress of March 23d, 1792, was unconstitutional and void. The case is preserved in a footnote to 13 Howard's Report, page 52. As early as 1789 Justices Iredell and Peters held that an act of the legislature in conflict with the Constitution was void. In 1795 in the case of Pennhallow v. Doane, the question was discussed in the Supreme Court, but was not decided. In that discussion the judges clearly showed that they were aware that the people in adopting the Constitution intentionally lodged the judicial power to declare acts of Congress void, in the courts. In 1796 the question was again incidentally discussed in case of Ware v. Hylton. The exact question involved in that case was whether the treaty between the United States and Great Britain of 1783 revived a debt due from a citi zen of Virginia to a British subject. It has been often said that John Mar shall, who was attorney for the defen dant in this case, took a position as such attorney antagonistic to his opinion in the case of Marbury v. Madison. By an examination of the case it will be seen that such is not the fact. The argument of John Marshall had no reference to the extent of the judicial power arising under the Constitution of the United States. It was his contention that the act of Virginia could not be rendered void by international law, and that inter national law or the law of nations could not invalidate an act of Virginia, con tending that the act of Virginia could only be restrained by its own munici pal constitution, and as that consti tution did not restrain said act of Vir ginia therefore the act of Virginia was valid, although the international law might be to the contrary. While the