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§ 131. The last instance which I shall notice occurred in our own times. A case arose in Wisconsin which grew out of the Fugitive Slave Law. An United States marshal had been engaged in arresting a person claimed as a fugitive slave, and was brought before the state courts in a proceeding wherein he relied upon the statute of Congress as his justification. The Supreme Court of Wisconsin decided that the act called the Fugitive Slave Law was unconstitutional and void. An attempt having been made to carry the case to the national court for review, the judicial authorities of Wisconsin held that their own action was final, and refused to obey the mandate from Washington.1

§132. Whatever opinion we may have in regard to the policy of Georgia's treatment of her Indian tribes, and of the expediency, morality, or even validity of the Fugitive Slave Law, we must insist that both these states acted in a revolutionary manner. If they were right, our whole political fabric has no coherence; is nothing more than a heap of sand, to be disintegrated by the slightest force that can separate the component particles. But these instances are exceptions only, never in future, let us hope, to be followed.

§ 133. While the doctrine is insisted on with the utmost emphasis, that the capacity to interpret and construe the Constitution in a final and authoritative manner belongs alone to the nation, to be exercised through its imperial government, it is not contended that the several states do not possess the same function in a subordinate and auxiliary manner. In fact, it is absolutely necessary that each commonwealth should, in many instances, primarily give a construction to the national organic law. This may be done either implicitly by their legislature in enacting, and by their governor in executing, a statute, or expressly and formally by their judiciary in passing upon the validity of such statute. For the Constitution, in many particulars, speaks directly to the states as political societies, limiting their legislative powers, and restraining them from adopting certain classes of laws. The question whether a proposed statute is forbidden by the Constitution must then, 1 Ablemann v. Booth, 21 Howard's R. 506.

in the first instance, be presented to the state legislature; the question as to its validity when passed, may, in the first instance, be presented to the state courts. While the function of interpreting the organic law of the United States belongs, therefore, to the states, its exercise by them lacks the element of finality, of conclusive authority; their determinations may be reviewed, disregarded, and reversed by the general govern

ment.

§ 134. II. Does this power reside in all departments of the national government, or in some one of them?

Although it has thus been settled as a part of our civil polity, that the United States possesses the sovereign attribute of giving effect to its own Constitution, there has been more conflict of opinion in times past and that conflict still exists to some extent among theorists in respect to the question, what department of the general government is the final depositary of this power to interpret and expound the organic law, and to define the extent and character of the functions committed by the people to their national rulers, and to the several states. It has been urged by some that each department — the Executive, the Legislative, and the Judicial, — is, in this respect, entirely independent of the others; that each must decide, in regard to its own powers, for and by itself, and is not in the least controlled by the decisions and judgments of the others upon the same questions.

It has been held by others, that the Judicial Department, the Supreme Court, is, from the very nature of its official powers and capacities, the final arbiter; and that its decisions are binding, not only upon the parties to suits litigated before it, but upon the several states, and upon the Executive and Congress.

§ 135. This latter opinion has practically been adopted and acted upon by the government and the people from the commencement of our present organization. In the great majority of instances, Presidents and Congresses, as well as states, have yielded to the expositions of law as uttered by the national judiciary. So constant has been this practice, that it forms the rule; any deviations from it have been exceptional, rather

the results of individual opinion, than of any settled and definite policy.

I might rest my preference for the doctrine that the national Judiciary alone is clothed with the high power which it has exercised, upon this general assent; but the correctness of that position can be established by considerations drawn from the Constitution, and from the nature of our government, which seem to be absolutely irresistible.

§ 136. Mr. Jefferson announced the principle that each department of the government was the sole judge of the extent and character of its powers under the Constitution, or, in other words, was an independent interpreter of that instrument. In his private and public political writings he advocated this view with great earnestness, and acted upon it, in some instances, while President. After him, President Jackson reiterated the same dogma, brought it into bold relief, and based much of his official action upon it. I cannot but believe that the opinion adopted by these eminent men was in very great measure the result of personal qualities and temperament. The whole course of Mr. Jefferson's public life, and especially his private correspondence, show that he was bitterly hostile to the national judiciary from the very commencement of our Union. He was decidedly in favor of a form of government more democratic than ours, and looked upon the checks and balances contrived to restrain the action of the more immediate representatives of the people, with no favor. Mr. Jackson possessed an iron will and determination, and was unable to yield his own opinions to those of another. In our own times the dogma under consideration has been asserted by some public men and political writers who are warm partisans of the intrinsic and absolute nationality and sovereignty of the United States. Most of these gentlemen, however, belong to a school which is disposed to unduly exalt the Congress above the other coördinate departments of the government. None of these theorists would probably admit that the President had an independent and equal capacity with Congress to interpret the Constitution and to judge of the validity of a statute. This modern school- for the ideas they represent are new

in this country,

would raise the Congress to a position equal in power to that of the British Parliament, would reduce the Executive to the political level of the British Crown, and entirely destroy the Judiciary as a coördinate department of the government. It seems to be plain, to be, indeed, selfevident, that if the conclusions reached by Jefferson and Jackson should be adopted as practical guides in the administration of public affairs, our whole organization would at once fall in pieces; but that if the later notions as to the sole authority of Congress should be accepted, the government would rapidly change into an irresponsible tyranny, for the legislature would not be restrained by those deep rooted and ancient social and traditionary sentiments which are so strong a conserving power in Great Britain.

§ 137. The national government is composed of three separate departments, to each of which is confided a distinct class of functions and duties. Yet it is not in accordance with the truth to say that each is independent of the others. Each is so completely dependent on the others that without them it could practically do nothing. Congress is to pass laws, but not to execute or expound them. It is the province of the President to execute, but he cannot make. The Judiciary must expound, and apply to particular individual suitors, but can neither make nor execute. Each is therefore a complement of the others. Of these three classes of functions, that possessed by the Congress is undoubtedly by far the most important and efficient, affecting more immediately the interests of the people. That body holds the initiative in almost all public affairs; the President cannot execute, nor the Judiciary expound, a law until Congress has acted. The legislature must, therefore, in the very exercise of the capacities bestowed upon them, expressly or tacitly pass upon the meaning of the Constitution, and the extent of the powers they may wield. Their decision must be regarded as prima facie correct, and must stand and be enforced by the Executive until the Judiciary shall have pronounced it wrong, and the statute a nullity. The independent power of the President would seem to be limited to the exercise of his veto, by which he

may call the Congress to a second examination of the proposed measure, and require the unusual majority of two thirds to give it a compulsive character.

§ 138. What ruinous, destructive consequences would immediately result, if it should be practically admitted that the several departments might independently judge and decide as to the extent and character of the powers conferred by the Constitution! The collisions would as readily and as often arise between the Executive and the legislature as between either and the Judiciary. To illustrate: Congress passes a statute, which the President, deeming unconstitutional, vetoes. It is passed again, notwithstanding his objections, and thus becomes a law. The duty devolves upon the President to execute this law; but he, still regarding it as contrary to the provisions of the Constitution, and judging thereof independently, refuses to carry it into operation, although perhaps the courts may have pronounced it valid, and have adjudicated upon rights created by it; the law is thus made a dead letter. How often must such circumstances arise to render the government an object of contempt, rather than of veneration and love?

§ 139. Again: Congress passes a statute which is approved by the Executive. Certain individuals, affected thereby, bring their case before the Supreme Court for examination. The law is decided by that tribunal to be null and void. This decision is admitted by all theorists to be binding upon the immediate parties to the suit in which it is rendered, so that they are released from the obligations of the law. If it be not also binding upon the government, we then have the astounding anomaly of Congress and the President insisting upon the validity of a statute which is obligatory upon those persons alone who may choose to assent to it; while all persons who refuse that assent, and bring their cases before the supreme tribunal, will be relieved from the duty of obedience. In other words, this law would be entirely deprived of all sanction; it would become a mere request; no obedience could be enforced; every recognition of its authority would be voluntary; the distinctive and essential element which constitutes law would be utterly lost.

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