JAN. 31, 1833.]

Revenue Collection Bill.

[SENATE.

gation in a court of justice, Mr. Marshall, then a represen- and cannot be represented and brought up for decision by tative of Virginia, now chief justice of the United States, individuals. in defending the conduct of the President, thus deliver- In a case between two citizens, parties to an ejectment, ed his opinion in that debate.—(Appendix 5, Wheaton, claiming lands, the one party under a grant from the State p. 17.) of New York, the other under a grant from the State of Connecticut, in the gore which was claimed by both States, the court was competent to decide the private rights and interests of the parties. But that decision could have no controlling influence over the line of jurisdiction between the two States; because those States were not parties. So said the Supreme Court of the United States in the cases of Fowler vs. Miller, and Fowler vs. Lindsay, (3 Dallas, p. 411.) And one of the judges, in delivering his opinion, with whom all concurred, asked emphatically, "On what principle can private citizens, in the litigation of their private claims, be competent to fix the important rights of sovereignty?"

"By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. A case in law or equity may arise under a treaty, where rights of individuals acquired or secured by a treaty, are to be asserted or defended in courts." "But the judicial power cannot extend to political compacts." This distinction between a political power and a judicial power is recognised and acted upon by the Supreme Court of the United States, in the case of Williams vs. Armroyd, 7 Cranch, 423,433.

The twelfth amendment to the constitution takes away the jurisdiction which had been given to the Supreme Court to hold jurisdiction of a suit against one of the United States by a citizen of another State, or by citizens Again, in the case of Marbury vs. Madison, (1 Cranch, or subjects of any foreign States; but leaves the juris137, 1st Peters's Condensed Reports, 279,) this distinction diction conferred over controversies between two or more between the political powers of Government and the States. If two States, therefore, have a controversy, judicial power is most explicitly avowed and recognised which, in its character, makes a case in law or equity proby the Supreme Court. The supremacy of that court is per for judicial cognizance, it may be brought before the a judicial supremacy only. It is supreme in reference to Supreme Court. Controversies between two or more the other courts, in questions of a judicial character, States, about territory or limits, may be litigated before brought within the sphere of judicial cognizance by con- the Supreme Court of the United States. But then each troversies which shall have assumed a legal form for State must have an opportunity, as a party, to prosecute forensic litigation and judicial decision. There must be or defend her right before the decision can bind her. parties amenable to its process, bound by its power, Those are questions of meum et tuum; rights of property whose rights admit of ultimate decision by a tribunal to which one State claims to the exclusion of the other; not which they are bound to submit. "Questions in their political rights belonging to all the States respectively, nature political, or which are by the constitution and laws where the rights and powers of one State does not exsubmitted to the Executive, can never be made in this clude but establishes the rights of each and every other. court." Such rights claimed for all, as belonging equally to each The decision of the Executive, upon political questions and every of the States respectively, cannot make a consubmitted to its discretion, is as supreme as the decision of troversy in law or equity between two States. the court within its jurisdiction. Neither department | Political powers not delegated to the Federal Governought to invade the jurisdiction of the other; so said the ment, political powers reserved to the States, constitute Supreme Court of the United States, in Marbury vs. Ma- the subjects of the propositions which are affirmed on the dison. A judicial decision binds the parties litigant in one side, and denied on the other. The propositions that particular case, not others who are neither parties affirmed are, that the powers of the Federal Government nor privies, whose rights and privileges are separate and result from the compact to which the States are parties; distinct. Not even the court itself is bound to give the that these powers are limited by the plain sense and inlike decision between other parties, where a similar ques- tention of the instrument constituting that compact, and tion may be involved. Prudence will dictate that a former no further valid than they are authorized by the grants decision be not lightly disregarded, but adhered to in a enumerated in that compact; "and that, in case of a subsequent case, unless the judges see an error in the deliberate, palpable, and dangerous exercise of other former decision. But honesty requires that an erroneous powers, not granted by the said compact, the States, who opinion be not carried into doctrine, and error perpetuat- are parties thereto, have the right, and are in duty ed, merely because of the first error. Errors should be bound, to interpose for arresting the progress of the evil, corrected, not perpetuated. To err is the lot of man; and for maintaining, within their respective limits, the to correct an error is noble and praiseworthy. No decision authorities, rights, and liberties appertaining to them." binds in law or in morality, beyond the rights of the If the Congress of the United States usurp and exerparties litigant, and those claiming under them as privies; cise a power not delegated, but reserved, it is evident and even there, not until the time for a new hearing or that the controversy about this exercise of power must re-trial has expired. But as to all other persons, it binds be between the Government of the United States and not. It is contrary to the first principles of justice, that the States. How is this controversy to get into the courts, the rights, interests, and privileges of any person should and finally to the Supreme Court, so as to bind the State be decided, negatived, and abrogated, before he is heard as one party, and the Government of the United States as to make good his title and his claim, his rights and his the other party? For on no principle can private citizens, justification. God in his infinite wisdom did not condemn in the litigation of their private claims, be competent to Adam unheard. And this example of divine wisdom and fix the important rights of sovereignty. A decision in a justice is fit to be imitated by human tribunals. case to which a State is not a party cannot bind the State;

When parties present themselves before the Supreme it is res inter alios acta. So said this court, to whom these Court of the United States to litigate the judicial question litigated questions of the limits of sovereign power are involved in that controversy, the decision of the court supposed to be referred, by those who deny the right of binds the rights and interests therein represented and liti- the States to interpose.-Fowler vs. Miller and Lindsey, gated; it binds no others. 3 Dall. 412.

The public rights, privileges, authorities, and preroga- Mr. Callender was tried, convicted, and sentenced to tives of the States, are not the property of individuals, fine and imprisonment in the State of Virginia by the

SENATE.]

Revenue Collection Bill.

[JAN. 31, 1833.

federal court, under the sedition law. Now, it is clear imprisoned, on conviction of such disobedience, and never that Mr. Callender was not in his individual person the admitted to become a citizen of the United States. To representative of the State of Virginia, so as to bind that obtain a license, such alien was to prove his innocence, State by the decision, and fix her sovereign rights. Mr. and to give bond and security for his good behavior, and Lyon was tried and sentenced in Vermont under the sedi- for not violating his license; which the President, howevtion law by the federal court; yet that decision did not er, might revoke at his pleasure. All aliens ordered to bind the State of Vermont. Mr. Cooper was sentenced depart, who did not obtain license to remain, were liable for sedition by the federal court in the State of Pennsyl- to be arrested and sent out of the United States, at the vania, yet that did not bind that State; neither did all discretion of the President. these decisions bind the States, nor settle the point that This act was not levelled against the citizens of any the sedition act was valid and constitutional; nor would the power, State, or potentate, at war with the United decision of the Supreme Court have had that effect if States, for there was then no declaration of war by the such cases could by law have been carried to the Supreme United States against any foreign power. There was Court. another act passed in July, 1798, "respecting alien To bind a State, and command obedience to the de- enemies," providing for a case of war, and operating only cision of the Supreme Court, in a question relating to a upon the citizens or subjects of the hostile nation or Govdangerous usurpation of powers not delegated, but re-ernment. This act of June, 1798, was levelled at alien tained by the States, it is necessary that a case should be friends; against those who had been invited by the policy brought before that court between the United States and of the States, and the genius and spirit of our free instia State, as parties litigant; because, according to the first principles of jurisprudence, none but the rights of parties are bound by the decision.

tutions, to fly from the oppressions and convulsions of the old world, and seek an asylum in the States; against oppressed humanity, seeking a home on our peaceful shores. Where is the grant of power to the judicial department All this numerous class of aliens, not then having comto hold a plea of controversy between the United States pleted their naturalization, were placed at the discretion and a State, as parties in a controversy touching the poli- of the President, to be removed upon suspicion, without tical powers alleged to be reserved to the States, respec- the form of a trial, except in the mind and judgment of tively, and not delegated to the Federal Government? Is the President. The sedition law operated upon citizens there any thing in the constitution which gives color to as well as aliens.

the idea that a suit can be maintained in the Supreme These two acts, when made to bear against particular Court, or in any of the inferior courts, between the individuals, might have been the subjects of judicial inUnited States as plaintiffs and a State as defendant, or vestigation in each particular case; but the decision in such between a State as plaintiff against the United States as case would have affected only the personal rights of the defendant, to settle a controverted question of delegation individuals, parties to the judicial proceeding, but could and reservation of political powers? Would such a suit not fix and bind the important rights of the State sovebe a case in law or equity according to any usage of reignty involved in those two acts of Congress. Those speech? Let us try to frame the complaint on the one acts, although they had never been brought to bear upon side, and the defence on the other, and come to the a single person, did invade the political rights and powers judgment, upon the alien and sedition laws. What sentence is to be passed upon the State? I suppose that her resolutions were seditious and unconstitutional; that she should forever thereafter acknowledge that the alien and sedition laws were constitutional; that she repeal her false and seditious resolutions. Ridiculous!

of the States, violated that security for liberty of speech, of the press, of the person, which the States respectively had a right, and were in duty bound, to maintain within their respective jurisdictions; and counteracted the policy and interests of the States, by driving from their shores alien friends, whom their laws had encouraged and invited Let the Attorney General of the United States try to to settle their vast tracts of wild, uncultivated lands; the frame a bill in equity, or an indictment for the United faith of a sovereign State was pledged; that sovereign States against a State or States; or the Attorney General was bound to take care that its plighted faith was not of a State to frame a declaration at law, or bill in equity, violated by the usurpation of another potentate. The or indictment, for a State against the United States, to try private rights and personal security of individuals, and the controverted questions of political powers delegated the political rights, authorities, and powers of the State and retained by the States; draw out the plaint, and it Governments, were both invaded and violated by these will appear at first blush to be an anomaly, not known in two acts. An individual might be indicted for sedition, the vocabulary of "cases of law and equity," not to be and sentenced, or be arrested for refusing to depart acclassed under the judicial power over cases in law and cording to the order of the President, and the court might equity, according to any law or rule of speech. There refuse to discharge him upon habeas corpus. The private is no grant of power to the Supreme Court to hold juris- rights of the individual, when violated under color of the diction of any such plaint or bill. Such a plaint in law alien or sedition law, might be submitted to the judicial or in equity would be a novelty in the history of judicial powers. But the political powers, authorities, and liberpowers. The portentous consequences of such a juris- ties of a State, violated by those laws, cannot be subjectdiction in the court would strike with terror and amaze-ed to the judicial power of a federal court, supreme or ment as soon as such a process should be instituted. inferior; they cannot be arrested, tried, condemned, re

The alien act of June, 1798, was enacted when the moved, or extinguished. Such cases as do not fall proUnited States were at peace with all the world. By this perly under the denomination of judicial powers, of cases it was declared that it shall be lawful for the President of of law and equity, according to common usage and accep the United States "to order all such aliens as he shall tation antecedent to the constitution, required an enumejudge dangerous to the peace and safety of the United ration and express delegation to the judicial department States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the Government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order." Any alien, so ordered to depart, found at large within the United States, after the time limited in such order, and not having obtained a license from the President to remain, was subject to be

to hold cognizance of such classes, of which there are examples in the constitution; such as controversies between two or more States, and between a State and foreign States, &c.

The distinctions between political and judicial powers; between judicial cases in law and equity, and political cases; between the binding effect of a judicial decision on the parties litigant, and its want of obligatory force on

4

others, not parties nor privies, are very necessary to be observed.

The disregard of the usage of speech antecedent to the constitution, and of the distinctions just mentioned, would remove the landmarks of the compact. It would convert the Supreme Court into a political council and board of control, to administer the political opinions of its members. It would confer on the Supreme Court powers too gigantic and terrific, too dangerous to the peace of the United States, to the reserved powers of the States, and to the safety of the Union.

It would carry along with it the power to the Supreme Court to decide upon acquisition of new territories, and upon the admission of States into the Union, formed out of such purchased territories; the power to decide how far infractions of treaties and delays of reparation did abrogate those treaties between the United States and foreign nations.

The whole system of the United States, for ascertaining and adjusting private land claims in the newly acquired territories by commissioners, reserving the final decision to the Congress, depends upon the distinction I have taken. Remove these distinctions, and the powers of the legislative and executive departments depend on the judgment of the Supreme Court; and the limits of its own powers would depend upon its own will.

[SENATE.

oath can detract nothing from the constitution; nothing from the public liberty, which the constitution was intended to protect. It admits the right to protect and preserve the constitution, and imposes a duty to avenge the violation of it.

By the constitution, the diversified particular interests of the States were intended to be under the regular action of the Federal Government, secured and reserved from federal legislation: 1st, by a judicious selection of the delegated powers, the exercise of which were most likely to promote the general welfare of all the States, and least likely to bear oppressively upon any one of them; 2d, by regulations and prohibitions upon the exercise of those powers so specified and delegated, so as to render their action uniform in all the States, and to guard against a preference or favoritism towards any of the States; 3d, by guarding against amendments which might delegate additional powers, and divest the States of further portions of sovereignty, unless such amendments were proposed by two-thirds of the Houses of Congress, or twothirds of the Legislatures of the several States, and afterwards ratified by three-fourths of the States.

But by this new doctrine of supremacy of the federal court, an irregular action of the Federal Government is substituted in place of amendment. Usurpation of power, if sanctioned by the Supreme Court, is made equal to A new mode of drawing to the Federal Government an additional grant by an amendment of the constitution. the reserved powers of the States is let in, which evades A majority of the States combined in interest, may, if sancand puts to naught the safeguard to the minority of the tioned by the Supreme Court, exercise any powers not States provided by the compact against amendments. delegated, not necessary and proper to execute the powThe door is open to usurpation and tyranny, by giving the ers especially delegated, but new substantive powers to Federal Government the sole and entire control, indepen- the Government, added by construction, destructive of dent of any control of the States. the particular interests and prosperity of a minority of By the theory of the constitution, if the Congress de- the States-powers which two-thirds of both Houses, or sire to exercise a new power not before delegated, they two-thirds of the Legislatures of the States, would not must draw upon the States for a further surrender and propose; or, if proposed, would not be ratified by threedelegation of another portion of their reserved powers. fourths of the States as an amendment to the constitution. To sanction such new delegation of power, three-fourths A majority of the States elect a majority of the Senaof the several States must consent, by ratifying the amend-tors, and a majority of the members of the House of Rement proposed. But in practice, under this new doc- presentatives; and a bare majority of the States may be so trine, that whatever power is sanctioned by the Supreme taken as that they may elect a majority of electors of PreCourt of the United States is constitutional, and the sident and Vice President. So that a majority of States States have no power to interpose, a bare majority of both combined in the assumption of new powers, may exercise Houses of Congress, with the assent of the President and such new constructive powers to their agrandizement, and the Supreme Court, or two-thirds of both Houses with the advancement of their particular interests, to the dethe assent of the Supreme Court, without the assent of pression of the particular interests and prosperity of the the President, may alter the constitution at pleasure. If minority. Such a combination may be perpetuated by the Congress exercise any of the powers reserved to the the very fact that it is a combination of the majority of States by passing an act, let the Supreme Court, in a lit- local and particular interests. The aggression cannot be igation between two citizens, in which this law is incident- corrected by an appeal of the minority for a change of ally drawn in question, sanction it as constitutional, then, according to this unlimited power, conferred on the Supreme Court by construction, the act would be constitutional law, sound constitutional doctrine. Protect the authors of the law from a public examination of their conduct, by the terrors of an alien and sedition law, to speak or to write against the authors of the law would be seditious; to oppose the law by force would be treason, rebellion! So say those who contend for the unlimited power of the Supreme Court to decide "all cases arising under the constitution and laws of the United States!" Deny the rights of the States to interpose to arrest the usurpation, and where is the remedy?

representation in the two Houses, because of the special interests which the majority of the States have in continuing such system of benefits to themselves, at the expense of the minority. The combination can effectually perpetuate itself by continual elections to both Houses, and by the election of the President and Vice President.

This is a short way of adding new powers by assumption of Congress, with the consent of the Supreme Court, and denying the authority of the States to interpose to arrest the evil. It is a new mode of amendment to the constitution, totally variant from the mode prescribed by the constitution. It evades and defies the security and efficient safeguard provided by the constitution, and encourages encroachments which lead to a tyrannical concentration of all the powers of Government, both State and federal, in the same hands.

Happily, a Legislature cannot be indicted of sedition; a State cannot be indicted of treason, and arraigned at the bar of a court. The general revolt of a whole nation against usurpation and oppression cannot justly be called But there may be instances of usurpations of undelerebellion. Truth is comprehended by examining princi- gated power so contrived as to evade the examination ples. A whole people resisting oppression, and vindicat- and decision of the judicial department, even in suits being their own liberty and the constitution, commit no tween the Federal Government and an individual. crime in so doing. Private men, who swear allegiance The very protective system, which is the source of the to the constitution, who swear" obedience ad legem," unhappy discontents in South Carolina as well as in other no obedience "extra vel contra legem." The States, is a striking example.

swear

VOL. IX.-19

SENATE.]

Revenue Collection Bill.

[JAN. 31, 1833.

The tariff bill, on its title and face, professes to be for a President, so as to give a majority of a desired political revenue. But the duties imposed produce revenue ex- cast. These judges hold their offices for life, removceeding the wants of the Government for its economical able by impeachment by the House of Representatives, expenditures. The high imposts are enacted for protec- and conviction by the concurrence of two-thirds of the tion of manufactures. But this motive and intent is conceal- Senators. Their responsibility is too remote, and the ed and not avowed in the bill, howsoever strongly urged number too few for a high prerogative court, with power on the floors of Congress to induce the high tariff, and to adjust the political powers of the Federal and State howsoever this intent may inflate extravagant and waste- Governments, and try the Federal Government when imful expenditures, for the purpose of fostering and continu- peached of usurpation and encroachment upon the reing the high pressure of taxation upon consumers.

served powers belonging to the States. If the central Now, the judicial tribunals cannot go out of the act to Government be accused of encroachment and usurpation, look for the motives of the members of Congress; they its triers, the Supreme Court judges, are, in their turn, liacannot examine into the secret springs of action in the ble to be impeached and tried by the central Government. Legislature. So it is decided in the case of Fletcher vs. The Congress who commit the usurpation are the only perPeck, in the Supreme Court of the United States. As sons who can impeach and try their judges. The offending the power to tax imports and collect revenue is expressly Congress are to be tried by their judges; and the offending delegated, the question of the undelegated but usurped judges are to be impeached and tried by the offending Conpower of protection of one class of citizens, by giving gress. There is but little wise and practical security in this money to them, taken from the pockets of other classes against the encroachments of the central Government. of citizens who consume domestic manufactures, can No plaintiff would feel very safe if the defendant had the never arise upon a bill professing to be for revenue. But sole power to appoint the jury, with the power superwill the gentlemen who are so ardent for protection of added to accuse that jury of misconduct, and try the acmanufactures be pleased to divide these subjects into two cusation. It seems to me that if those wise and practical acts: the first, for revenue; the second, declaring that statesmen and patriots who framed the new federal conover and above the amount of duties necessary for revenue, so much additional duty shall be imposed for protection? Bill number one, for revenue, no citizen will question. But bill number two, for protection avowedly, will be questioned; the judicial tribunals can, at the instance of any individual, who pays the duty for revenue, but refuses to pay the duty for protection, come at the question of delegated or undelegated power. Aye, more, sir; the people will see how much they are taxed for the wants of the treasury; and what for the system of protection to manufactures. I challenge the supporters of the protective system to such a trial.

stitution had designed the Supreme Court to be the sole prerogative court of high and ultimate commission to try the central Government for usurpation of powers not delegated, and the final and sole safeguard for the reserved powers of the States, they would have devised some more certain and direct responsibility of the judges to the States, than by referring their impeachment to Congress, who must be parties, aiders, and abettors in the usurpation. The States would not have adopted the constitution if they had been informed that such was to be its interpretation.

In deliberating upon the extent of the powers intended to be conferred by the constitution upon the several departments, and the powers reserved by the States, we ought to keep steadily in view

1st. The perpetuity of the Union;

Government, at best, is but an evil. But it is a necessary evil. It is founded in an imperious necessity arising out of the very nature of man, his imperfection, his appetency to pursue his passion and selfish desires, to the de- 2d. The powers necessary to a fair and energetic adstruction of the rights and interests of his fellow-men. ministration of the Government, as ordained and estabIf men were as perfect as angels, then no Government lished; would be necessary. But such is the nature and imper- 3d. The safety of a minority of the States against a fections of man, that the exercise of the powers of Gov-combination of a majority; ernment tends to increase, not to allay, his lust for do- 4th. The security against usurpation and degeneracy minion. into practical tyranny.

These are the great interests of every true American, to which every patriot ought to look with a watchful, steadfast eye.

Few men are willing to lessen their own powers. There are illustrious examples to the contrary. They stand conspicuous and illustrious, because they are exceptions to the general rule. "Power is continually stealing from Every construction of the constitution which tends, in the many to the few." No wise and practical statesman, practical operation, to weaken the exercise of the powers who is a lover of rational liberty, none but a political plainly conferred, to lessen the security against the comdreamer of the perfectability of man, or one who, ex- bination of a majority of the States against the minority, pecting to bask in the sunshine of power, loves it more or to weaken the guards against usurpation and practical than liberty, would ever construct a Government upon tyranny, tends necessarily, in the end, to weaken and disany other plan than that of providing and securing checks solve the bonds of union, and ought, therefore, to be reand balances against the encroachments and abuses of jected.

power. The federal constitution was framed and adopted Union, common defence, and protection, justice to all, by wise, patriotic, and practical statesmen, lovers of li- rational liberty to all, now and at all times hereafter, were berty, inspired with a holy zeal in a revolution to resist the great ends intended by the constitution. All conthe encroachments of power from the central Govern-structions which tend to subvert these great ends; which ment upon the rights and liberties of the colonies. They tend to invite or encourage usurpation in the Federal did not, they could not, intend to create a central Govern- Government, or to the usurpation by one department of ment with unlimited powers, nor a Government without powers belonging to another department; which tend to sufficient practical checks against the usurpations which invite and encourage a combination of a majority of the might be attempted upon the reserved rights of the States. States to pursue their interests at the expense of a minoThe Supreme Court of the United States is not such rity of the States, ought to be rejected as repugnant to sufficient check and safeguard against the encroachments the leading objects of the constitution. These leading of the central Government upon the State Governments. inducements were, justice to the whole, the welfare The number of judges of the Supreme Court is not defined by the constitution. That number is but seven at present. Four are a majority of the court. But the number may be increased at the pleasure of the Congress and

of all.

Oppression, injustice, invasion of private property by the insidious arts of legislation, insecurity against the oppressive hand of power, combinations by a majority of

JAN. 31, 1833.]

Revenue Collection Bill.

[SENATE.

confederated States against the minority, have produced may be made universal. But the notions of political jusrevolutions and destruction of Governments, and will re- tice, and balances of political power, are mutable and produce them, unless the human race shall be degene-variant, differing, like the complexions, habits, education, rated into brutal ignorance; non-resistance and passive and feelings of politicians.

obedience be inculcated as of divine institution; and every If the Supreme Court is to be the sole and exclusive spark of rational liberty shall be extinguished. judge in the last resort, not only of judicial questions The genius of our institutions, the intelligence of the properly submitted to it by the forms of the constitution, people of the States, the spirit of free inquiry guaran- but also of all questions touching the confines of political tied by the Federal and State Governments, the love of powers delegated and not delegated by the compact, liberty which pervades the great body of the peo- then not only the legislative and executive departments ple, all conspire to insure us that the iron age of igno- of the Government hold their powers at the will of this rance, tyranny, and passive obedience is never to infect court, but the concurrence of this court, with the other this land with its baleful gloom, unless preceded by those departments of the Federal Government, "in usurped awful convulsions of party strife and civil war, which de- powers, might subvert forever, and beyond the possible solate social order, and bury science, morals, and religion reach of any rightful remedy, the very constitution which in the ruins. all were instituted to preserve." If one of the parties is

Are there no dangers to liberty to be apprehended to be the sole and exclusive judge of the extent of the from referring all the political powers of the Federal powers to him delegated, and of the concessions made by Government, and all the reserved powers of the States, the other parties, then such party would have an unlito the guardianship of a few judges appointed for life, mited and supreme authority over the other parties. It not removable, except by impeachment for crimes and is not sufficient to discriminate in theory the several classes misdemeanors; not impeachable or removable for error of power, and distribute them between the legislative, of opinion? So far removed from responsibility, (" for im- executive, and judicial departments; neither will it suffice peachment is not now even a scarecrow,") if transformed to mark with precision the boundaries between the powinto a political court instead of a judicial tribunal, is there ers delegated to the Federal Government and those reno cause to apprehend that a majority of the judges may tained by the States, and trust to these parchment barriers administer their theory of what the Government should for defence against the insatiable appetite and restless be, instead of the theory as actually adopted by the States? gnawings of power. Experience teaches that the efficacy Are no judicial opinions tinctured and discolored with the of such paper barriers are too feeble to withstand the party feelings and opinions of the day? Is there no cause scorching desires of power, and that some more adequate to apprehend that the judges will follow up the maxim defence is indispensable to secure the more feeble against taught in the law schools, and issued from the bench, the more powerful members of the Government. "est boni judicis ampliari jurisdictionem," not only to The judicial department does not present the requisite

the enlargement of their own powers, but to the enlarge-security in matters of such transcendent and vital importment of the powers and increase of the jurisdiction of the ance. The judges of the Supreme Court are too few in Federal Government, as the means convenient and pro- number. The permanent tenure by which their appointper to the end, the amplification of their own jurisdiction?ments are held, as well as their salaries and the mode of their If the judges of the Supreme Court are to have the appointment, destroys all sense of dependence on the final and exclusive authority to settle political questions, States, and lifts them above the common burdens of the touching encroachments upon the reserved powers of the people; and, from the very nature of their callings, they States, and all other political questions arising under the see human nature in the worst light. constitution, then, superadded to those qualifications These are but too apt to infuse into their minds highwhich have heretofore been thought essential for a judge, toned notions of a forcible consolidated Government, as the primary consideration in selecting him ought to be, necessary to "save the people from their worst enemy-in what political school has he been brought up? What themselves." Judges, in a long course of official duties, are his political opinions on certain great contested poli- are familiarized to the sight of frauds, chicaneries, misdetical questions? To what political party does he belong? meanors, and crimes; accustomed to exercise the force I respect a court of justice, but I abhor a party court. of the laws upon knavish wealth, naked poverty, and Let us not, by construction, transform a court of justice squalid vice; they are but too apt to confound the into a political council of state. Let us not transform distinction between the judicial powers necessary to admithe emblem of justice into the emblem of power. Let us not defile the sanctuary of justice with the passions of political parties contending for political powers.

nister the laws, and political powers necessary to prescribe the laws; between the powers necessary to be granted to secure and protect against a violation of the laws by the vicious, and the powers necessary to be reserved to the good for protection and security against a violation and abuse of the political powers of the Govern

If the Supreme Court is once acknowledged to be the ultimate tribunal for settling the boundaries of political power between the Federal Government and the State Governments, so as to bind the parties to the compact, ment. then it will inevitably follow that the court will be the In England, from the time that Alfred hung the forty subject of political party strife. Reform in the court, by judges for illegal and corrupt practices, to the trial and infusing a new spirit by other or additional judges, will conviction of Algernon Sidney for high treason, in writbecome the subject of political party strife as much as ing that celebrated treatise on Government, (which, since reform in the executive administration. The majority of his execution, has been published,) against the divine Congress and the Executive might at any time add to right of kings, and the doctrines of non-resistance and the bench of the Supreme Court a sufficient number of passive obedience, and from that time to this, the history judges to carry an important question of political power. of judicial power, as exercised, teaches this solemn truth The British ministry advised the King to create a suffi---judges are but men, fallible men. cient number of new peers to carry the reform bill. The The history of judicial power in our own country and power of a majority of Congress, with the aid of the Pre- in our days, is not less impressive. sident, to create new judges, for a special occasion, is as effectual as the power of the King to create new peers. I respect an independent, upright judge. There is a The principles of civil justice to be administered by the generous confidence yielded by the moral sense of the judicial tribunals are fixed, immutable, and eternal; they community to such an officer. He is looked upon as the are so nearly assimilated in all civilized nations, that they guardian of civil rights, the protector of life, liberty, and

But I forbear.