SECTION XII. THE SUBJECT CONCLUDED. A supreme, general, or national government, has been inferred from three sources, and deposited in two places. It has been inferred from the election of the house of representatives, from the magnitude of the powers delegated to the federal government, and from the supremacy of the federal court; but it is sometimes deposited in this court, and at others in a federal government. Those who contend for the latter doctrine, connive at the claim of the judiciary, well knowing that it is a powerful instrument for effecting their object of introducing a consolidated national government. Being merely the executive instrument of legislation, it is better calculated to extend than to control the powers of a legislative department, on which it is dependent. The claim of the judiciary, therefore, to settle the rights of the federal and state departments, merits a section appropriated to the construction of Mr. Madison, from which it has originated. "The local or municipal authorities form distinct or inde"pendent portions of the supremacy, no more subject in their "jurisdiction to the general authority, than the general autho 66 rity is to them." What does Mr. Madison mean by the word authority? Does it include both the state and federal judicial authorities? If so, he asserts that the jurisdiction of each is supreme and independent of the other. Or, does the word general, include the federal judiciary? If so, he asserts that the state judiciaries possess a jurisdiction no more subject to the federal judiciary, than this is to them. In the face of this dilemma, Mr. Madison proceeds. "It is true that in controversies relating "to the boundaries between the two jurisdictions, the tribunal "which is ultimately to decide, is to be established under the general government. This construction simply asserts, "that "the state jurisdiction is no more subject to the federal jurisdic"tion, than the federal jurisdiction is subject to the state juris " "diction; and that the state jurisdiction is subject to the federal "jurisdiction." An equivalent inference from the general posi tion, that neither of these authorities was subject to the other, would have made the doctrine complete; namely, that the fede ral authority was subject to the state authorities; and it would have contained more truth. The ambiguities of the words used by Mr. Madison, will shed much light on his conclusion. What is meant by the words general government? Is general equivalent to national? Either term includes the house of representatives in Congress; and as Mr. Madison deduces his na tional government from the mode in which that house is elected, it would be evidently incorrect to exclude it from his general authority. If it constitutes a portion of this general authority, and if a general authority has the power of appointing a tribunal to settle the boundaries of state and federal jurisdiction, the house of representatives ought to participate in its exercise. But that house does not participate in the appointment of the federal judges, and therefore these judges do not seem to constitute the tribunal contemplated by Mr. Madison. If the word tribunal means the supreme court, then the president and senate confer on a few men a power, supposed to be within the gift of the general authority only. As the word tribunal does not designate this court, the words used imply, that the tribunal for deciding con troversies between the federal and state governments, as to the extent of their mutual powers, is to be established by the federal government; and this would be less objectionable than the selec tion of these supreme censors by the president and senato, be cause the house of representatives would participate in its estab lishment, under the influenco of the people. The word under means, by or subordinate to, the general government. If this objection is answered by asserting, that Congress may extend or contract the constitutional jurisdiction of the federal court; the formidable doctrine, that it can alter the constitution by laws, presents itself; furnishing the consolidating inference, that it can also extend or contract the powers of the legislative and execu tive federal departments. Whatever Congress can do by its agent, is a power in itself. If it can confer a legal concentrated supremacy on the judicial department, it can enable this depart ment to extend its own powers or contract those of the states, and create a concentrated supremacy in itself. Congress might suppress a refractory majority by additions of new men to the tribunal, as kings of England have managed a more numerous body of aristocratical noblemen, by making new peers; or it might by impeachment remove a firm patriot, and terrify others, as has been often practised. Suppose a constitutional article had been proposed in Mr. Madison's words: "The general go"vernment shall establish a tribunal to decide the limits between “the delegated and reserved powers." Would it have been acceded to? It was proposed in the convention to effect this end, by investing a national government with a negative over state acts; and the proposition was rejected. Could it have been intended to empower such a government to effect by an agent, that which it was not allowed to do itself? Or was not such a power either in itself or its agent, superseded by the mode prescribed for altering the constitution? "It is true that in controversies relating to the boundaries be"tween the two jurisdictions, the tribunal which is ultimately to "decide, is to be established under the general government." These words irresistibly imply, that the tribunal to decide was to be distinct from the parties litigant for jurisdiction. There could be no controversy of the kind, if one party could dictate to the other. In that case, submission and not controversy must ensue. Could Mr. Madison have intended to say, that in controversies between the state and federal judiciaries for jurisdic tion, the general government might make either of the parties the judge of its own cause? Or did he mean, that it might establish an impartial tribunal to decide between them? "The decision is to be impartially made, according to the "rules of the constitution, and all the usual and most effectual precautions are taken to secure this impartiality." Parties litigant always claim under the same law, as federal and state judiciaries contending for jurisdiction, claim under the same constitution; but it was never before inferred from thence, that a party deciding in his own case would construe a law or a constitution impartially. To secure this impartiality, however, Mr. Madison says, that all the usual and most effectual precautions are taken, by the constitution, and thus he recognises the federal judiciary as the tribunal intended. Where are we to find these precautions, which have had the rare effect of compelling a party to decide impartially in his own case? Or is it usual to invest a judicial department with a supreme power of regulating the boundaries between independent legislative departments? It would be difficult to discover a single instance, either in laws or constitutions, or in the theoretical reveries of political writers, wherein the most distant idea was entertained of effecting impartiality in either case. We must therefore search in vain for "usual and most effectual precautions to secure impartiality," in cases never before contemplated, namely, those of a party empowered to try his own cause, and that of a judicial depart ment empowered to exercise the supremacy of regulating poli tical powers between independent legislative departments. To assume the sufficiency of the usual precautions to secure judicial impartiality, in the exercise of the usual judicial power, as a proof that they will secure judicial impartiality, in the exercise of these unusual judicial powers, is utterly inconclusive. The mutual control of political departments, both in theory and prac tice, has hitherto been considered as the usual and most effectual precaution, for keeping them within the spheres prescribed by constitutions; and as the most essential security for liberty; nor do I recollect that this security has ever before been abandoned in pursuit of judicial impartiality. Mr. Hamilton considers this control as an axiom, and as the only effectual security for a good form of government; vindicates the republican supremacy of the people over the controlling departments; and rejects a political supremacy of judges, as utterly inconsistent with it. So far his construction is true to his creed, and he only cripples, though he does not quite kill it, by changing the federal government from a department, into a general government; yet he retains the su premacy of the people. But Mr. Madison obliterates the whole axiom, and the supremacy of the people; and confides intirely in judicial impartiality for a free form of government. Yet it has been experimentally established, in every instance of a su preme control of one political department over the others, whe ther it is itself elected by the people or not, that the nature of the government is overturned. A supremacy of the British house of commons, though elected by the people, would not tolerate any control by the other departments; and those who admire that form of government, are careful to maintain a mutual power in its departments to control each other, as the only means by which it can be preserved. Those who admire our federal system, may therefore read in the book of experience, that it cannot exist, unless a mutual power of control between the state and federal departments is effectually maintained and exercised, under the supremacy of the people. To exchange this best security against ambitious usurpations, for the untried novelty of exalting a single court into a supreme political power, upon the ground that its integrity in exercising it is secured by certain usual precautions, is a hazardous experiment; because, if political integrity could be obtained by these precautions, they have not been ever thought of as imparting political wisdom to a court, which is quite distinguishable from the legal knowledge considered as the recommendation to office. 66 To ascertain the force of this reasoning, let us consider what are "the usual and most effectual precautions to secure judicial 'impartiality." The judicial system of this country has been modelled in imitation of the British, and by borrowing their precautions, we have demonstrated an intention of effecting the same end which theirs contemplated. Tenure for life, fixed salaries, and impeachment, are both their means and ours. The end of the British precautions, was to obtain judicial impartiality in the distribution of justice between individuals, and not in a distribution of powers between political departments. Had the latter new and extraordinary end been contemplated by the establishment of a British judiciary, new and extraordinary precautions would have been invented, for preventing political partialities or errors, infinitely more dangerous than any frauds which cculd be committed in relation to individuals. And had our constitution contemplated an extension of judicial power to an object so superior, it would not have been contented with precautions contrived for securing distributive justice to individuals. For this end, judicial tenure for life, fixed salaries, and impeachment, were deemed sufficient. These might prevent any undue |