of the repealing Act. This Act was passed the 1st of April, 1790: the repealing part is as follows.

(Here the Judge read the 1st and 2d sections of the Act. See 2 Vol. Dall. Edit. Penn. Laws, p. 786.)

This Act was made after the adoption of the Constitution of the United States, and the argument is, that it is contrary to it.

1. Because it is an ex post facto law.

2. Because it is a law impairing the obligation of a contract.

1. That it is an ex post facto law. But what is the fact? If making a law be a fact within the words of the Constitution, then no law, when once made, can ever be repealed. Some of the Connecticut settlers presented their claims to the commissioners, who received and entered them. These are facts. But are they facts of any avail? Did they give any right or vest any estate? No - whether done or not done, they leave the parties just where they were. They create no interest, affect no title, change no property; when done they are useless and of no efficacy. Other Acts were necessary to be performed, but before the performance of them, the law was suspended and then repealed.

2. It impairs the obligation of a contract, and is therefore void. If the property to the lands in question had been vested in the State of Pennsylvania, then the legislature would have had the liberty and right of disposing or granting them to whom they pleased, at any time, and in any manner. Over public property they have a disposing and controlling power, over private property they have none, except, perhaps, in certain cases, and those under restrictions, and except also, what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents. But if the confirming Act be a contract between the Legislature of Pennsylvania and the Connecticut settlers, it must be regulated by the rules and principles which pervade and govern all cases of contracts; and if so, it is clearly void, because it tends, in its operation and consequences, to defraud the Pennsylvania claimants, who are third persons, of their just rights; rights ascertained, protected, and secured by the Constitution and known laws of the land. The plaintiff's title to the land in question is legally derived from Pennsylvania; how then, on the principles of contract, could Pennsylvania lawfully dispose of it to another? As a contract, it could convey no right, without the owner's consent; without that, it was fraudulent and void. I shall close the discourse with a brief recapitulation of its leading points.

1. The confirming Act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is precisely in the same state, as if it had not been made. If so, the plaintiff's title remains in full force.

2. If the confirming Act is constitutional, the conditions of it have not been performed; and, therefore, the estate continues in the plaintiff.

3. The confirming Act has been suspended-and

4. Repealed.

The result is, that the plaintiff is, by law, entitled to recover the premises in question, and of course to your verdict.

Verdict for the plaintiff.1

COOPER v. TELFAIR.

SUPREME COURT OF THE UNITED STATES. 1800.

[4 Dallas, 14; 1 Curtis's Decisions, 314.]

THIS was a writ of error to the Circuit Court of the United States for the District of Georgia. The plaintiff in error brought an action of debt on a bond dated in 1774, against the defendant, as obligor. The defendant pleaded that by an Act of the Legislature of the State of Georgia, passed on the 4th day of May, 1782, the plaintiff and other persons named in the Act, were banished from the State, and their property, real and personal, including all debts due to each of them at the date thereof, was confiscated to the State, such persons being at the same time declared by the Act guilty of high treason. That by virtue of this Act, and another Act passed on the 10th day of February, 1787, giving certain powers to the auditors of the State, this debt became vested in the State of Georgia, and no cause of action hath accrued to the plaintiff. To this plea the plaintiff replied, in substance, that he had never been tried, convicted, or attainted of treason, and that the Acts relied on were repugnant to the Constitution of Georgia, adopted on the 5th day of February, 1777, and so were void. To this replication there was a demurrer, which was joined, and the Circuit Court held the plea good. The cause was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas for the defendant.

1 For the early cases in the Federal Courts, see Meigs, 19 Am. Law Rev. 186. The case in the text appears to be the earliest Federal decision. The informal utterances of the Circuit Court Judges, in letters and memoranda, reported in the note to Hayburn's Case, 4 Dall. 409, in 1792, announce their opinions, that an Act of Congress of March 23, 1792 (1 St. at Large, 243), was unconstitutional; just as Chief Justice Jay and several of the judges of the Supreme Court, in 1790, in a letter intended for the President, had made a like declaration as to a part of the Judiciary Act of 1789. See 4 Am. Jurist, 293; 2 Story, Const. s. 1579, note. But in these there was no judicial utterance. In the case of Yale Todd (February, 1794), preserved in a note to U. S. v. Ferreira, 13 How. 52, it was decided that the theory of the legislation of March 23, 1792, adopted by some of the judges, viz., that it gave them authority to act as commissioners, was untenable. It is inaccurate to say that this case holds the Act of 1792 to be unconstitutional, as appears to be said in the note in 13 How. 52, and as is expressly said in the Reporter's note in 131 U. S., Appendix, ccxxxv.

Marbury v. Madison is the earliest Federal decision in the Supreme Court. — ED.

The judges (except the Chief Justice, who had decided the cause in the Circuit Court) delivered their opinions, seriatim, in substance, as follows:

WASHINGTON, J. The Constitution of Georgia does not expressly interdict the passing of an Act of attainder and confiscation, by the authority of the legislature. Is such an Act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication? Where an offence is not committed within some county of the State, the Constitution makes no provision for a trial, neither as to the place, nor as to the manner. Is such an offence (perhaps the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary? If the plaintiff in error had shown that the offence with which he was charged had been committed in any county of Georgia, he might have raised the question of conflict and collision, between the Constitution and the law; but as that fact does not appear, there is no ground on which I could be prepared to say that the law is void. The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.

CHASE, J. I agree, for the reason which has been assigned, to affirm the judgment. Before the plaintiff in error could claim the benefit of a trial by jury, under the Constitution, it was, at least, incumbent upon him to show, that the offence charged was committed in some county of Georgia, in which case alone the Constitution provides for the trial. But even if he had established that fact, I should not have thought the law a violation of the Constitution. The general principles contained in the Constitution are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory; for, even in the Constitution itself, we may trace repeated departures from the theoretical doctrine, that the legislative, executive, and judicial powers should be kept separate and distinct.

There is, likewise, a material difference between laws passed by the individual States during the Revolution, and laws passed subsequent to the organization of the Federal Constitution. Few of the Revolutionary Acts would stand the rigorous test now applied; and although it is alleged that all Acts of the Legislature, 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 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 to be unconstitutional, and, therefore, invalid; but there is no adjudication of the Supreme Court itself upon the point. I concur, however, in the general sentiment, with reference to the period, when the existing Constitution came into operation; but whether the power, under the existing Constitution, can be employed to invalidate laws previously enacted, is a very different question, turn

ing upon very different principles, and with respect to which I abstain from giving an opinion, since, on other ground, I am satisfied with the correctness of the judgment of the Circuit Court.

PATERSON, J. I consider it a sound political proposition, that wherever the legislative power of a government is undefined it includes the judicial and executive attributes. The legislative power of Georgia, though it is in some respects restricted and qualified, is not defined by the Constitution of the State. Had, then, the legislature power to punish its citizens, who had joined the enemy, and could not be punished by the ordinary course of law? It is denied, because it would be an exercise of judicial authority. But the power of confiscation and banishment does not belong to the judicial authority, whose process could not reach the offenders; and yet it is a power that grows out of the very nature of the social compact, which must reside somewhere, and which is so inherent in the legislature that it cannot be divested or transferred, without an express provision of the Constitution.

The constitutions of several of the other States of the Union contain the same general principles and restrictions; but it never was imagined that they applied to a case like the present, and to authorize this court to pronounce any law void, it must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative application.

CUSHING, J. Although I am of opinion that this court has the same power that a court of the State of Georgia would possess, to declare the law void, I do not think that the occasion would warrant an exercise of the power. The right to confiscate and banish, in the case of an offending citizen, must belong to every government. It is not within the judicial power, as created and regulated by the Constitution of Georgia, and it naturally, as well as tacitly, belongs to the legislature.

BY THE COURT. Let the judgment be affirmed, with costs.

MARBURY v. MADISON.

SUPREME COURT OF THE UNITED STATES. 1803.

[1 Cranch, 137; 1 Curtis's Decisions, 368.]

Ar the last term, namely, December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq., late Attorney-General of the United States, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the

District of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the Senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissious are withheld from them; that the applicants have made application to Mr. Madison, as Secretary of State of the United States, at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the Secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate; whereupon a rule was laid to show cause on the fourth day of this term. This rule having been duly served,

Mr. Lee read the affidavit of Dennis Ramsay, and the printed journals of the Senate of 31st January, 1803, respecting the refusal of the Senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions in the office.

The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any.

Mr. Lincoln, Attorney-General, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as Secretary of State at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as Secretary of State.

The questions being written, were then read and handed to him.