to avoid a conflict that the motion was taken under advisement, and held until the statute was amended. A subsequent case, however, was brought by amicable action against one Yale Todd to recover money paid him under a finding of Chief Justice JAY, and Judges CUSHING and LAW, acting as commissioners. After argument, judgment was rendered against the defendant, No opinion, stating the grounds of the decision, was filed, but the result was a determination that, as the power conferred by the act of 1792 was not judicial within the meaning of the Constitution, the act was unconstitutional. Chief Justice JAY and Justices CUSHING, WILSON, BLAIR and PATERSON were present at the decision, which seems to have been unanimous. (See note to United States v. Ferreira, 13 Howard, 40 and 52.) The question was again raised, in 1798, in the case of Calder v. Bull, 3 Dallas, 386, and some doubts were expressed by Mr. Justice CHASE as to the jurisdiction of the court to determine that any law of a State Legislature contrary to the Constitution of the State was void, but he declined to express an opinion whether the Supreme Court could declare void an act of Congress contrary to the Federal Constitution. A similar question was raised in the case of Cooper v. Telfair, 4 Dallas, 194, where MR. Justice CHASE said: It is, a general opinion, indeed 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 agree, however, in the general sentiment." The learned judge had evidently forgotten the decision in the case of United States v. Yale Todd. The question was directly raised before Chief Justice MARSHALL in the famous case of Marbury v. Madison, decided in 1803, in which, as Chancellor KENT declares (1 Kent's Commentaries, 453). "the power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any State Legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration." The language of Chief Justice MARSHALL is clear and conclusive. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like any other act, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. If an act of a legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as though it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted upon. It shall, however, receive more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. This is the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary acts 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 paramouut law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law." To characterize such reasoning as sophistry is childish. A school-boy might as well challenge a proposition of Euclid, or attempt to ridicule the Principia of Newton. Thomas Jefferson stormed at it in impotent rage, and since his time a few atrabilious critics have denounced it as mere obiter dictum; but, notwithstanding all assaults, it stands as an adamantine piece of reasoning, and constitutes an invincible buttress of our nationality. The power was never again seriously questioned in the Federal courts for many years, until the question directly arose in Cohens v. Virginia, 6 Wheaton, 264. The reasoning of MARSHALL in that case has settled it forever. Nothing but a political earthquake can unsettle it. The pyramid of Cheops has stood for six thousand years unshaken by the barkings of the jackals at its base. The power has been constantly exercised, and the instances in which statutes of the United States have been held to be unconstitutional by the Supreme Court of the United States, stated in order of time, are as follows: 1792, Hayburn's Case, 2 Dallas, 409; 1794, U. S. v. Yale Todd, 13 Howard, 52; 1877, U. S. v. Fox, 95 U. S. 670; 1883. Boyd v. U. S., 116 U. S. 616; 1887. Callan v. Wilson, 127 U.S. 540, and in Thus, from 1790 to 1895, inclusive, the Supreme Court has exercised the power to declare acts of Congress unconstitutional, because of conflict with the Constitution, in twenty-one separate instances. During the same period it exercised the same power without challenge or remark, as to jurisdiction, in relation to the statutes of the States and Territories in one hundred and eighty-two instances: Seven cases being from Alabama, four from Arkansas, seven from California, one from Delaware, one from the District of Columbia, one from Florida, eight from Georgia, six from Illinois, three from Indiana, four from Iowa, three from Kansas, four from Kentucky, nineteen from Louisiana, one from Maine, nine from Maryland, two from Massachusetts, two from Michigan, three from Minnesota, one from Mississippi, eleven from Missouri, one from Montana, one from Nevada, one from New Hampshire, one from New Jersey, sixteen from New York, two from North Carolina, nine from Ohio, two from Oregon, thirteen from Pennsylvania, four from North Carolina, eight from Tennessee, five from Texas, one from Utah, one from Vermont, thirteen from Virginia, three from West Virginia, and three from Wisconsin. A partial list of these cases (complete, however, up to 1888), is to be found in the Centennial Appendix to Volume 131 of the United States Reports. See, also, Appendix No. 2 to the Annual Address of J. H. Benton, Jr., of Boston, Mass., printed in the proceedings of the Southern New Hampshire Bar Association, 1894. After these numerous and repeated exercises of power, all of which, even the carliest, rest upon the soundest and broadest foundations, it is preposterous to speak of the decision of the Supreme Court in the Income Tax cases as an assumption of authority." Whether the act itself was in terms just or unjust, wise or foolish, does not touch the question. If Congress does not possess the power to pass such an act under the Constitution, there is no law of which the features can be discussed. To attempt to reverse the decision of the court on the ground of the supposed justice of the act reviewed, or to vindicate the act upon the false and untenable assertion that the court has usurped authority, is to argue in a vicious circle. It indicates an entire lack of comprehension as to the distinction existing between legislative and judicial power. He who railed against the government, and preached sedi tion was, in former days, after conviction, either hanged or sent to Botany Bay. As this is an age of milder manners, it may be sufficient to suggest to all those who are disappointed in the effort to incite the people to pull down about their own ears the fabric of the government, in the effort to produce a condition of "harmony," that they are at liberty to secure a continent, or if that be too small, a separate hemisphere of their own. In an action for an accounting, between owners of property and their agents for its sale, a personal indebtedness of one of the owners to one of the agents cannot be considered, “that," in the words of FOWLER, J., "being a transaction between them and him, in which the other defendants are in no wise interested." Set-Off by AGENT AGAINST PRINCIPAL. When, in the course of the agency, money belonging to the principal has come into the agent's hands, and the principal makes a demand upon him for an accounting, or return of the money, under what circumstances, if ever, can the agent set up, in reply, that a debt is due him from the principal ? It is said that "the right of set-off, recoupment and counterclaim, in actions at law between principal and agent, is governed ordinarily by the same rules that apply in other cases. This right, however, may be waived by contract, express or implied, and it cannot be insisted upon where its enforcement would result in a violation of the agent's duty to his principal: " Mechem on Agency, § 535. 'Reported, 32 Atl. Rep. 389. |