The Introduction to this Essay will consider both these classes of extraordinary reasons for a fresh discussion of its subject. Before doing so, however, it is proper to make some observations in further explanation of the subject and in justification of the writer's chief purpose. Justificatory and explanatory observations. The chief of the writer's purposes is to show that the constitution of the United States provides in express terms for the judiciaries of the United States and the several states having the following competency viz., a judicial competency to decide questioned legislation to be federally constitutional or unconstitutional and to hold it valid or void accordingly, whether it be made by Congress or proceed in any form from a state. Eminent professional authority has 'denied that the U. S. constitution contains any express mention or reference whatsoever to the subject, and has categorically asserted that, while the power of the Supreme Court to declare a questioned law unconstitutional and void is certain, it is also certain that such power is based exclusively upon implication and inference, and not upon the express import of any text of the constitution. This opinion is not an isolated one. On the contrary, it is a representative opinion. Chief Justice Marshall's decision in Marbury v. Madison is relied upon to support it. As far as it relates to acts of Congress, at least, that decision can certainly be relied upon for such support. As far as it relates to state laws and state constitutions, no one of the texts, for which certain express meanings are hereinafter asserted, in order to refute such an opinion, can have the asserted express meaning without contradicting or correcting a meaning given thereto by either Marshall, Story or Web ster. The persons who acquiesce in the opinion in question are, doubtless, very numerous. At the first sight it, therefore, may seem that the writer of this Essay is attempting an impossibility, or an absurdity, in seeking to show that the constitution contains texts of express import upon a certain subject, when others of its ⚫ students think otherwise. Words which convey an express meaning to one reader must convey it to all, it will be said; otherwise the meaning will not be an express one. When a writing calls a spade a spade, there is no doubt about its express meaning to all readers. This is a very important objection and requires a full answer at the threshold of this Essay. In the first place, it is observed in answer that, assuming the objection to be true in ordinary cases, it is not true whenever a written document contains technical terms, whether those terms belong to law, medicine, or any particular science or art whatsoever. The constitution of the United States is written law. Unquestionably it contains many technical terms of law, e. g. habeas corpus, bill of attainder, ex post facto, bankruptcy, law of nations, levying war, etc. To lawyers, every one of these terms is of technical import; and so, ipso facto, of express import. All technical terms in all sciences and arts have an express import, and, when used, are used for that very reason. That the meaning of technical terms of the law should escape the understanding of laymen is not surprising. Whether for good or evil, the constitution of the United States can not be fully and entirely understood by minds ignorant of the science of the law. Story's Commentaries are addressed to learned readers (ed. 1, § 955, ed. 2, $958). That lawyers should sometimes ignore or forget the true meaning of technical terms of the law, may seem to some readers surprising. It is, however, natural. Lawyers are especially warned in a decision of Chief Justice Marshall, that the words "levying war," in the definition of treason in section 3. III. constitute an ancient and technical term of law which must be understood in its technical meaning, although the natural import of the words would certainly have admitted of some latitude of construction, if the application thereof to treason had for the first time been made by the constitution. U. S. v. Burr, 4 Cranch, page 470. The errors of lawyers as to the express meaning of the constitutional text are not confined to cases in which tech nical terms are used. The constitution is so frequently quoted from memory that errors must occur. Certain of its readers frequently delude themselves by imagining that they know parts of its text by heart, and therefore fail to verify quotations. In the ardour of composition, inadvertencies are often very natural. In recalling comparisons of texts in the constitution and the confederation, or in the constitution and the original draft thereof, or in a part of the constitution and a corresponding statute, errors are natural to some persons at all times and to most persons at exceptional times. In a word, to make one's self a good and precise textualist of the constitution is a difficult task. Moreover, the best textualist must keep in constant practice or run the risk of his memory deteriorating. In order that a commentator upon the constitution may be confident that he has before his mind all the texts relating to a given subject (whether they be technical terms or not), he must feel that he is so well prepared as to know and to command everything apt, which is written in the whole text of the document. He must likewise be confident that his memory has not been too active and injected words into the constitution which belong to other instruments. To be always up to such a standard, is in practice difficult. Practically, it demands a circumspection depending upon the memory as well as the eye. Errors will be made even by the most distinguished commentators, and still more by ordinary writers. Many readers of this Essay will doubtless assent to these remarks because of their reasonableness. Those who have made a rigorous study of the constitutional text will be able to reinforce them by reasons derived from their own experience. There may be readers, however, who will be skeptical as to such errors being possible, unless in other cases similar ones have been made. They may demand examples of errors, on the part of distinguished commentators, as to constitutional texts other than those involved in the subject of this Essay. In the first appendix to this Essay will be found a collec tion of instances of actual errors, as to such other texts, which have been made by distinguished commentators. The texts relied upon by the writer for his own chief purpose will, it is contended, be proved, in every case except one, to be technical legal terms, whose express meanings have been inadvertently overlooked. In the excepted case, no term merely a legal one is used. The exception is a word used in a special logical sense, which can be so used on the highest kind of authority in any branch of learning whatsoever. The iterative use of the word in this sense by the constitution is so marked, that its logical and authoritative meaning is, in fact and in law, its express meaning in the constitution. CHAPTER II. Of the reasons for a fresh discussion of the subject, which are derived from the judicial history of the constitution from the beginning thereof. No. 1. Of the reasons aforesaid, which will be considered in the form of a review of the final paper in the Appendix to 131 U. S. Reports. No. 2. Of the cases in which the Supreme Court has decided acts of Congress to be unconstitutional. No. 3. Of the case of Dred Scott v. Sandford. No. 4. Of Hayburn's case. No. 5. Of the case of the United States v. Yale Todd. No. 6. Of the case of v. the Secretary of War. No. 7. Further consideration of the latter case. No. 8. Of the case of Marbury v. Madison. No. 9. Of the cases of the United States v. Ferreira, and Gordon v. the United States. No. 10. Of the case of Ex parte Garland. No. 11. Of the case of the United States v. De Witt. No. 12. Of the foregoing cases in general. No. 13. Of the cases in which the Supreme Court has decided state legislation of any sort to be (federally) unconstitutional with a detailed statement thereof. No. 14. Of the latter class of cases in general. This chapter will be devoted to the first class of extraordinary reasons for a fresh discussion of the subject. They relate to the judicial history of the constitution from the beginning. They are concerned with all those decisions of the Supreme Court in which it has pronounced against the constitutionality of legislation. No. 1. Of the reasons aforesaid, considered in the form of a review of the final paper in the Appendix to 131 U. S. Reports. The reasons aforesaid can best be explained in a review of the contents of an important paper by Mr. Davis, the official reporter of the Supreme Court. In the year 1889, there appeared the 131st volume of the reports of cases adjudged in the Supreme Court of the United States. This official volume contains a remarkable appendix of some 280 pages by the reporter, which is most appropriately published on the occasion of the Supreme Court completing the first century of its existence. The elaborate papers contained therein are of great value and interest to the constitutional law and judicial history of the Union. One of these papers relates to the subject of this Essay. After describing the other contents of the Appendix, the reporter observes on page XVIII: "In addition to these papers I have added, at the end of "the appendix, a list of cases in which statutes or ordi"nances have been held by the court to be repugnant, in "whole or in part, to the constitution or laws of the United "States. The period covered by this table begins with 2 "Dall. and ends with the present volume. "It only remains to say that all this matter has been laid "before the justices of the court individually; and it is now |