by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, although the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continual changes in the import of words and phrases.

"Let it, then, be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on for the true and safe construction of a constitution; that which has the uniform sanction of successive legislative bodies through a period of years, and under the varied ascendency of parties, or that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favorite object, or led astray by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading

causes.

"It was in conformity with the view here taken of the respect due to deliberate and reiterated precedents, that the Bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution throughout a period of twenty years, with annual legislative recognitions; in one instance, indeed, with a positive ramification of it into a new State, and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive, under these circumstances, with an admission of the expediency and almost necessity of the measure, would have been a defiance to all the obligations derived from a course of precedents, amounting to the requisite evidence of the national judgment and intention.

"It has been contended that the authority of precedents was in that case invalidated by the consideration that they proved only a respect for the stipulated duration of the bank, with a toleration of it, until the law should expire, and by the casting vote given in the Senate by the Vice-President in 1811, against a bill for establishing a national bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void and could not be constitu tionally fulfilled or tolerated. And as to the negative of the Senate, by the casting vote of the presiding officer, it is a fact, well understood at the time, that it resulted not from an equality of opinions in that assembly on the power of Congress to establish a bank, but from a junction of those who admitted the power but disapproved the plan with those who denied the power. On a simple question of constitutionality, there was a decided majority in favor of it."

There is also a very cogent argument on the same side, in Mr. Webster's speech in the Senate, in July, 1832, on the veto message of the President.

§ 1573. THE order of the subject next conducts us to the consideration of the third article of the Constitution, which embraces the organization and powers of the judicial department.

§ 1574. The importance of the establishment of a judicial department in the national government has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the confederation. And every government must, in its essence, be unsafe and unfit for a free people where such a department does not exist with powers co-extensive with those of the legislative department.2 Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty. The will of those who govern will become, under such circumstances, absolute and despotic; and it is wholly immaterial, whether power is

1 The Federalist, No. 22; Cohens v. Virginia, 6 Wheat. R. 388; 1 Kent's Comm. Lect. 14, p. 277.

2 The Federalist, No. 80; 1 Kent's Comm. Lect. 14, p. 277; Cohens v. Virginia, 6 Wheat. R. 384; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Deb. 143; Osborne v. Bank of the United States, 9 Wheat. R. 818,819. Mr. Justice Wilson has traced out, with much minuteness of detail, the nature and character of the judicial department in ancient, as well as modern nations, and especially in England; and a perusal of his remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3, p. 201, &c.

3 1 Kent's Comm. Lect. 14, p. 277. It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will in any case. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, - a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law." Osborne v. Bank of the United States, 9 Wheat. R. 866.

vested in a single tyrant or in an assembly of tyrants. No remark is better founded in human experience than that of Montesquieu, that "there is no liberty, if the judiciary power be not separated from the legislative and executive powers." And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.2 If that government can be truly said to be despotic and intolerable in which the law is vague and uncertain, it cannot but be rendered still more oppressive and more mischievous, when the actual administration of justice is dependent upon caprice, or favor, upon the will of rulers, or the influence of popularity. When power becomes right, it is of little consequence whether decisions rest upon corruption, or weakness, upon the accidents of chance, or upon deliberate wrong. In every well-organized government, therefore, with reference to the security both of public rights and private rights, it is indispensaøle that there should be a judicial department to ascertain and decide rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.3

§ 1575. In the national government the power is equally as important as in the State governments. The laws and treaties, and even the Constitution of the United States, would become a dead letter without it. Indeed, in a complicated government like ours, where there is an assemblage of republics, combined under a common head, the necessity of some controlling judicial power, to ascertain and enforce the powers of the Union, is, if possible, still more striking. The laws of the whole would otherwise be in continual danger of being contravened by the laws of the parts. The national government would be reduced to a servile dependence upon the States; and the same scenes would be again acted over in solemn mockery which began in the neglect and ended in the ruin of the confederation.5 Power, without adequate means to enforce it, is like a body in a state of suspended animation. For all practical purposes, it is as if its 1 Montesquieu's Spirit of Laws, B. 11, ch. 6.

2 1 Kent's Comm. Lect. 14, p. 273.

3 Rawle on Constitution, ch. 21, p. 199.

4 The Federalist, No. 22; Chisholm v. Georgia, 2 Dall. 419, 474; ante, vol. i. pp. 246, 247; 3 Elliot's Debates, 142.

5 See Cohen's v. Virginia, 6 Wheat. R. 384 to 390; Id. 402 to 404, 415; Osborne v. Bank of the United States, 9 Wheat. R. 818, 819; ante, vol. i. §§ 266, 267.

faculties were extinguished. Even if there were no danger of collision between the laws and powers of the Union and those of the States, it is utterly impossible, that, without some superintending judiciary establishment, there could be any uniform administration or interpretation of them. The idea of uniformity of decision by thirteen independent and co-ordinate tribunals (and the number is now advanced to twenty-four) is absolutely visionary, if not absurd. The consequence would necessarily be, that neither the Constitution nor the laws, neither the rights and powers of the Union nor those of the States, would be the same in any two States. And there would be perpetual fluctuations and changes growing out of the diversity of judgment, as well as of local institutions, interests, and habits of thought.1

As

§ 1576. Two ends, then, of paramount importance, and fundamental to a free government, are proposed to be attained by the establishment of a national judiciary. The first is a due execution of the powers of the government; and the second is a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them. The power of interpreting the laws involves necessarily the function to ascertain whether they are conformable to the Constitution or not; and if not so conformable, to declare them void and inoperative. the Constitution is the supreme law of the land, in a conflict between that and the laws, either of Congress or of the States, it becomes the duty of the judiciary to follow that only which is of paramount obligation. This results from the very theory of a republican constitution of government; for otherwise the acts of the legislature and executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the Constitution; and usurpations of the most unequivocal and dangerous character might be assumed without any remedy within the reach of the citizens.2 The people would

1 Martin v. Hunter, 1 Wheat. R 304, 345 to 349; The Federalist, No. 22.

2 The Federalist, Nos. 78, 80, 81, 82; 1 Tuck. Black. Comm. App. 355 to 360; 3 Elliot's Debates, 134. This subject is very elaborately discussed in the Federalist, No. 78, from which the following extract is made:

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts

thus be at the mercy of their rulers in the State and national governments; and an omnipotence would practically exist, like

of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privi leges would amount to nothing.

"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen, from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged, that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents.

'Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.

"This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation; so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which