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Court had the power to refuse to enforce the act of Congress which the court believed to be opposed to the constitution, and had admitted that its decision was binding on the parties before the court; but denied the right of the court to impose its interpretation of the constitution upon the executive branch of the government, and to restrain the President from enforcing the same statute.

On this subject Mr. Jefferson's expressions of opinion, chiefly in his published letters, were numerous. Perhaps his clearest expression of the doctrine is found in his letter to Judge Roane

in 1819:

"My construction of the constitution," said he, "is that each department is thoroughly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." Then he gave examples of his position, among which was that he himself had pardoned persons convicted under the Sedition Law, on the ground that the law was unauthorized by the constitution, and therefore null." "These," added he, examples of my position that each of the three departments is equally to decide for itself what is its duty under the constitution, without any regard for what the others have decided for themselves under a similar question." 1

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On the same subject General Jackson, in his celebrated message vetoing the bill to recharter the Bank of the United States,a message which re-elected him, and by an enormously increased majority, gave the following expression of opinion:

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"If the Supreme Court of the United States covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the Executive, and the Court, must each for itself be guided by its own opinion of the constitution. Each public officer, who takes an oath to support the constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or

1 Jefferson's Letters, Randolph's ed., Vol. 4, pp. 317, 318.

approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

On the same subject Mr. Lincoln, in his first inaugural address, anticipating that, in his task of saving the Union, he might encounter the opposition of the court which had rendered the Dred Scott decision, said: :

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made, as in ordinary litigation between parties in personal actions, the people will have ceased to be their own masters, unless having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the Court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions into political purposes."

Long before this, Alexander Hamilton, the heart and soul of American Federalism, had said :—

"The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, or a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. The preservation of

liberty requires that the three great departments of power should be separate and distinct."

Nor did these three great Presidents, each in his turn, hesitate to act upon the doctrine thus announced. Jefferson successfully resisted the untenable judicial fulmination in Marbury v. Madison under which an inferior Federal court subsequently attempted, by its writ of mandamus against the Secretary of State, to compel the delivery of a commission which Jefferson's predecessor had made out, appointing a justice of the peace; and the commission was never delivered. Jackson refused to assist in the execution of the mandate of the Supreme Court of the United States in Worcester v. Georgia, and the decision went for nothing. In another case an Indian named Tassels was hung by the State of Georgia under a judgment to review which the Supreme Court of the United States had sent its writ of error. Mr. Lincoln, at the very outbreak of the war, saw that he must make an issue with a judiciary in whose loyalty he could not wholly confide, and he accordingly resisted the execution of a writ of habeas corpus issued by Chief Justice Taney to enlarge a military prisoner confined in Fort McHenry.3 If he had yielded in that case and had adopted the policy of yielding in every other such case, there is no telling where judicial encroachments upon the mili tary powers vested in him by the constitution would have ended. Sentinels might have been taken from their posts by writs of habeas corpus; the march of armies might have been delayed by the arrest of the commanding generals under process of contempt. Nay, the modern use of the writ of injunction might have had an earlier development, and generals might have been enjoined in equity from invading unconquered territory, or from

1 1 Cranch (U. S.), 137.

26 Peters (U. S.), 515. See also Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1.

246.

Ex parte Merryman, Taney, Dec.

4 It will be recalled that, in the war of 1812, Chief Justice James Kent, of the Supreme Court of New York, issued an attachment for the arrest of

General Lewis, commanding a military post in time of actual war, for disobeying a writ of habeas corpus which he, Kent, had issued to inquire into the legality of the enlistment of a soldier in Lewis' army, an inquiry wholly outside the jurisdiction of any State judge. Martin v. Stacy, 10 Johns. (N. Y.) 328.

capturing cities, on the ground of protecting property and business.1

Mr. Street evidently did not expect the storm of dissent which his paper raised. He may have forgotten that one of the presidents of the body before whom he read it, himself a Democrat, had, at the meeting held the year before, delivered one of the most eloquent eulogies upon John Marshall that had ever been pronounced from human lips. He had possibly forgotten that, in the process of evolution upon this subject, Republicans had become Federalists, and Democrats had become Whigs. The most forceful dissent came from Mr. Charles C. Bonney, of Chicago, himself a modern Democrat, who opened the assault upon Mr. Street's essay by saying:

"Believing, as I do, that the doctrine of Judicial Supremacy is the rock on which constitutional government rests, a sense of duty constrains me to protest against any attempt, in a body of which I am a member, to impair that foundation stone of the superb superstructure that rests upon it." 2

After some further introductory remarks, he followed with an eloquent vindication of the new doctrine, from which I make the following extract:—

"All the judicial powers are granted to, and wholly vested in the one Supreme Court, and such courts, inferior thereto, as the Congress may establish. No such powers are reserved, no exception is made; hence we must conclude that no power of final construction, interpretation, and definition has been given to the Executive and Legislative Departments. That power, so wholly conferred upon the Judiciary, must he exercised by them for all departments and agencies of the Government. Executive and political officers may, in the first instance,— and, indeed, must-form opinions of their powers and duties in relation to the matters upon which they are called to act; but they have no jurisdiction

1 It will be remembered that unsuccessful attempts were made to enjoin the President of the United States, General Grant, General Ord, and other Federal officials, from executing the Reconstruction Acts: Mis

sissippi v. Johnson, 4 Wall. (U. S.) 475; Georgia v. Stanton, 6 Wall. (U. S.) 50.

2 Report of the Sixth Ann. Meeting Am. Bar Asso., p. 14.

and authority finally to determine the extent and limits of their powers under the constitution. The supreme and final authority so to decide is vested in the courts, and, when exercised, binds all the agencies of the government. The President and Congress are bound by their official oaths to support and uphold the constitution of the United States. What that constitution requires can be conclusively determined only by the judicial tribunals. If this were not the law, we should have the strange spectacle of the Purse and the Sword determining for themselves the extent of their obligations and powers. What patriotic executive or legislator would wish it so? Who would not rather desire to have some disinterested and impartial arbiter discharge that solemn responsibility?" 1

He concluded his remarkable address in the following words:

"For the reasons, thus briefly given, I must dissent from the argument of our learned brother, that the Legislative and Executive departments of the Government have the right to determine for themselves the extent of their powers and duties under the constitution, and must hold that those departments are, and of right ought to be, bound and concluded by the judgments of the Judiciary on all questions of constitutional authority. Let us encourage, rather than retard, the work of judicial evolution. Let us acknowledge and honor, rather than decry and seek to remove, that golden crown of constitutional government, JUDICIAL SUPREMACY." 2

Mr. Stevenson Burke, of Ohio, followed in a similar strain and concluded by saying:

"The courts established by the constitution are of necessity the final arbiters as to whether, in any given case, either the Legislative or Executive departments have transcended the limits of the constitution."

Judge Charles S. Bradley, of Rhode Island, said: "Ditto to Mr. Burke." He dwelt upon the practical phases of the question:

"Government," said he, "is essentially a practical matter. Let us look at the theory advanced, from a practical point of view. To take an

1 Ibid., p. 15.

2 Ibid., p. 20.

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