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of policy for Congress alone to decide; because they result from a discretionary power granted to it, with which the judicial department cannot interfere. Questions also exclusively of a political character result from the exercise of discretionary powers granted to the executive department.
In the settlement of these the President has the right to act independently and uncontrolled by either of the other two departments. .
It is in reference to the decision of such questions that Mr. Jefferson is to be understood when, in 1819, he writes to Judge Roan as follows: “Each department is truly 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 when it is to act ultimately and without appeal. I will explain myself by examples: A legislature passed the sedition law; the federal courts had subjected certain individuals to its penalties. I released these individuals by the power of pardon committed to executive discretion. In the case of Marbury vs. Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed. I withheld delivery of the commissions. When the British treaty of arrived without any provision against the impressment of our seamen, I determined not to ratify it. The constitution had made their (the Senate's) advice necessary to confirm a treaty, but not to reject it. In the cases of two persons antenati, under exactly similar circumstances, the federal court had determined that one of them, Duane—was not a citizen; the House of Representatives nevertheless determined that the other-Smith-was a citizen, and admitted him to his seat in their body. Duane was a Republican, and Smith a Federalist, and their decisions were made during the Federal ascendancy. These are examples of my position.”
The power of pardon, granted by the constitution, is in its exercise by the executive in all cases a matter of unlimited discretion. In what case and on what ground it is to be exercised, is a political question, and can never be the subject of judicial authority. In the case of Marbury vs. Madison, on application to the Supreme Court by the former against the latter, for a mandamus to deliver the commissions above referred to, that court discharged the rule, which had been served on Mr. Madison, to show cause why that writ should not be issued against him, and decided it had no right to grant the mandamus, nor any jurisdiction whatever over the case.
In the case of the treaty, it was surely within the rightful discretion of Mr. Jefferson, as President, to take the initiatory steps either of accepting or rejecting it when submitted to him for his action, and was, therefore, as purely and exclusively a political question for him to decide, as it would have been for the Senate to confirm or reject it, had he submitted it to them for their decision.
In the cases of Duane and Smith, the House of Representatives, in admitting Smith to a seat in their body, notwithstanding the decision of the court against the citizenship of Duane, did no more than exercise the exclusive and discretionary power expressly given them by the constitution to judge of the qualifications of 'their own members. These examples, cited by Mr. Jefferson expressly to illustrate his true position taken in his letter to Judge Roan and elsewhere, in regard to the right of the executive and the other two departments, each to decide, independently for itself, constitutional questions submitted to them, show conclusively that he only referred to such cases, as by the constitution are brought within the discretion of Congress and the executive, as political questions for the decision of each respectively. They show further, most unquestionably, that he did not intend to refer to cases in law or equity, submitted by the constitution to the decision exclusively of the judiciary. In such cases, the decisions of that department were recognized by both Jefferson and Madison to be final and binding, as rules of action for all the departments of Government, both federal and state.
It is not, however, every measure decided by the Supreme Court as an appropriate means of executing an express power, which is obligatory on either Congress or the Executive to adopt and approve. Undoubtedly, if adopted by Congress and approved by the President, such a measure becomes the supreme law of the land; but if it has expired by its own limitation, or has been repealed, Congress may, in the exercise of its discretion, afterwards adopt it again or not; and should Congress adopt it, the President, in the exercise of a like discretion, may approve or veto it. Because there may be many different constitutional means of executing the same power; in adopting or rejecting any one of which Congress or
the Executive would have the right to exercise its discretion. And in so doing, either may be governed by its own views of the constitutionality of the measure proposed. On this ground, Gen. Jackson could justify himself in vetoing the measure for re-chartering the Bank of the United States, although it had been declared constitutional by the Supreme Court. But a similar discretion does not exist, either in Congress or the Executive, to adopt or reject a measure which, being brought properly before the Supreme Court as a case in law or equity arising under the constitution, has been declared by it to be unconstitutional.
After the foregoing necessary explanation of some of the views expressed by Mr. Jefferson, which have been so frequently perverted by ignorance and party prejudice, let us proceed still further to show the real sentiments of the two great authors of the Virginia Proceedings, on the subject of the rightful authority of the federal judiciary. Mr. Madison, in his letter to “ Mutius,” declares, that “ the positions in the report (of 1799) are that the judiciary department is, in all questions submitted to it by the forms of the constitution, to decide in the last resort.” In his letter of 1831 to Mr. Trist, he said: “It will not escape notice that the judicial authority of the United States, when overruling that of a state, is complained of as subjecting a sovereign state, with all its rights and duties, to the will of a court composed of not more than seven individuals. This is far from a true state of the case. The question would be between a single state and the authority of a tribunal representing as many states as compose tlie Union.” In 1833 he again wrote: “That the constitution is a compact; that its text is to be expounded according to the provisions for expounding it making a part of the compact; and none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as it may accrue, it must grow out of the abuses of the compact, releasing the sufferers from their fealty to it.”
Through the “ Federalist,” adopted by Jefferson and Madison, as the text book on government, in the University of Virginia, they taught the young men of the country their doctrines on the subject of the Federal Judiciary, so clearly expounded in the following extract from No. 78 of that great work: “ 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 this 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.” Well may Mr. Jefferson, when he read such words of wisdom, have declared: “ In his opinion, the · Federalist' was the best commentary on the principles of government that ever was written;" and the Edinburgh Review responds to such a sentiment by saying: “It exhibits a profundity of research, and accurateness of understanding, which would have done honor to the most illustrious statesmen of ancient or modern times;” and Blackwood's Magazine, also, of 1825, by declaring: “It is a work, altogether, which for comprehensiveness of design, strength, clearness and simplicity, has no parallel. We do not even except those of Montesquieu and Aristotle among the writings of men.”
Let us see, now, how far these opinions of the extent of the judicial power of the Federal Government, held by Jefferson and Madison, are maintained by some of the highest authorities known to American jurisprudence.
In Cohens v. Virginia, Chief Justice MARSHALL, referring to the 2d Section of the 3d Article of the Constitution, said: “ This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. * * A case in law or equity consists of the right of one party as well as of the other, and may truly be said to arise under the constitution, or a law of the United States, whenever its correct decision depends on the construction of either. * * It (the judicial power) is authorized to decide all cases of every description arising under the constitution, or laws, of the United States. The judicial power of every well constituted government must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws. If any proposition may be considered as a political axiom, this we think, may be so considered.”
Judge Story, in the 2d volume of his Commentaries, declares: “ The universal sense of America has decided that, in the last resort, the judiciary must decide upon the constitutionality of the acts and laws of the General and State Governments, so far as they are capable of being made the subject of judicial controversy. It follows that when they are subjected to the cognizance of the judiciary, its judgments must be conclusive; for otherwise they may be disregarded, and the acts of the legislative and the executive enjoy a secure and irresistible triumph. To the people at large, therefore, such an institution is peculiarly valuable, and it ought to be eminently cherished by them. On its firm and independent structure they may repose with safety, while they perceive in it a faculty which is only set in motion when applied to; but, which, when thus brought into action, must proceed with competent power, if required, to correct the error, or subdue the oppression of the other branches of the government. Fortunately, too, for the people, the function of the judiciary in deciding constitutional questions is not one which it is at liberty to decline. It cannot, as the legislative department may, avoid a measure because it approaches the confines of the constitution. It cannot pass it by because it is doubtful. With whatever doubt, with whatever difficulties, a case may be attended, it must decide it when it arises in judgment."
Chancellor Kent says: “Nor is an independent judiciary less useful, as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and neccessary principle of our government, that the legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution as the paramount law, and the highest evidence of the will of the people.”' "The judicial power of the Union is declared to extend to all cases in law or equity arising under the constitution; and to the judicial power it belongs, whenever a case is judiciully before it, to deter mine what is the law of the lanıl. The determination of the Supreme