The southern press. [volume] (Washington [D.C.]) 1850-1852, 1851-10-15
A4 ApDnEss
Delivered before hs Society Of Aiin.ai Of me
University Of Virginia, atiis Annual Needing
held in hs Rotunda, on The 2Sth June, 1851,
BY JOHN RANDOLPH TUCKER
looNcLuDEDl

they have constituted no common arblter, each
must be, and is, the exc usive Judge OF the ex-
tent of his own obligation under the compact
The others cannot decide for him, unless unoer
some special delegation of authority to them Dy
him for he was originally only bound by MS
own consent and in no degree by that oil otnefs'
And how, then, can the extent OF ms oolga
tons under the contract be made except by MS
express consent, TO depend upon It's construc-
ton by those whose will was no element III shcii
original binding! In other words, how. in the
construction, is his will Invested of us original
power, and their will invested with what was MOI
their original power in its creation!
This principle is recognized in It's application
as well to conpacts between nations, rs between
individuals SO far is this the case between ma
lions, that treaties depend alone upon the Will
of each for their obligation; and when eth ~
seeks to enforce its own construction OF the OBJ,
legation of the other, the treaty is abrogated
ipso f1cto
Contracts between individuals, not cognizable
by the courts of the country, or subjected to
other arbitration by the consent OF The partles,
are only binding upon each according to his
own construction, and even mt the will OF either
are determinable. we'll known instance of
this is presented in the of contract invalid
by virtue Of the statute Of frauds, or other pro
| hibiiory enactments.
| If such, then, be the natural rights of a State
bound by virtue of these two relations, what
but their prohibition by the Constitution, or their
being Invested by an exclusive delegation to
some other power can prevent their exercise by
! it?
| Now it is beyond doubt, that it has not been
denied to the State by the terms OF the CoHstltu-
ton Has it been delegated to any other power
in such way as to exclude and dvest the natur-
al aud inherent light Of the State! This Is the
only question remaining.
| ! believe it has generally been conceded, that
no department, except the Judicial, has any such
right delegated to it makes it the final arblter
between State and itself, to the exclusion OF
such rights in the State. At all events, one
general remark will suffice for the executive and
legislative departments. The general principle
in respect to the relation between principal and
agent, would be conclusive against sueh right in
either Of these departments, as there Is to them
the mere grant of appropriate functions, with
the delegation OF no such right and with no
thing in the nature of their powers to authorize
the Implication Of it's existence.
Bat it is alledged, that such right belongs to
the Judiciary, finally to bind State, in respect to
the extent of the powers Of the government
against its Judgment, not indeed by virtue OF
any express authority or clause to that effect
but resulting by Inference from its general
jurisdiction in cases in law and equity arising
under the Constitution, and the accompanying
clauses
The power here given, is in its terms only a
judicial power; and as such, it was necessary 10
haze vested it in some department, whether II
were designed to give the right in question OF
not This is easily shown.
; The article concerning the Judiciary opens
with the declaration, that the judicial polcer o
the United States shall be vested in one supreme
court" &c. C. U. s., Art. g. Sec. Its ex
tent is limited to the decision of cases arisin!
8 judiciaily and only of such. G. U. s, Art.
l. Sec 2 There is nothing in its terms whic
d would show that the Constitution designed t.
. give any power of arbitration to the suprem
court, except in the Judicial cognizance of cause
= arising before il, they do before other simlla
8 tribunals
h One historical fact strongly confirms th
view In convention it was proposed to author
ize the other departments to call for the opln
ion of the supreme court on solemn occasions
g a proposition never adopted, and inferentially
3 because not approved Jour, of Con, 264
Now if the grant of powers appropriate to
= the other departments, does not by implication
carry this right to decide finally against the State
; the extent of their own powers, why should thu
e grant of merely Judicic powers, not only yes
Il in the Judiciary az to the extent OF its own
but of every other branch of the government
But there is broader ground of objection. Ii
: order to its being such final arbiter, Gas i. mus
be if at all by virtue of its Judicial powers only
o as have shown it must be invested with thre'
qualities.
D /. 1t must be competent to decide the ques
ton Tissue at all.
i 2. II must be competent to do so between
!. the government and the State.
3. It's competency must not only exclude al
J right on the part of the Sta to determine ii
II powers, but all right OF appeal from its decision
r by the State 10 its own final Judgment.
As to the first quality, remark, that there arr
many and the m ost important constitutions
questions, in which the judicial department doe
{, not possess it. From their very nature, they
cannot be brought before a Judicial tribunal.
A class of cases may arise, where the viola
ton of compact by another State, or the usur
patton of power by the government, may so con
sst in the m0tiUe to the act, as to be conccales
I under the form of law and Constitution. SucI
. are those cases, where the government refuses
to exercise powers essential TO our security, il
order to effect our ruin. In such, the possession
Of constitutional power imposes the duty of il
exercise and failure to fulfil such duty, or th
repeal of o law passed in obedience to its die
tates, would be as fatal a breach Of constitution
al obligation, as a direct invasion Of right
In such case, can the judiciary fathom un-
constitutional intent in the breast of Congress
or remove the veil which covers usurpation p
Can il declare a refusal TO pass law unconsti-
tutional, and enact it or command its passage
or can it revive a repealed law, by declaring the
repeal inconsistent with constitutional duty p
Clearly not.
Another class of cases may arise, fatal in their
influence, which cannot be framed for Judicial
enquiry, either from the nature of the question
or the peculiar relations of parties to it. Thus,
practically, the admission of Texas, or Califor-
MIA, the purchase of Louisiana, are acts, when
done, which are at once beyond judicial reach.
Now, in all such cases, it must be admitted,
the judiciary being incapable of arbi,ra ing them
at AL, cannot be final arbiter against the State
In such, therefore, the conclusion results, that
the State is its own arbter, finally to determine
its own destiny.
But the second quality is even less clearly
possessed by the Judiciary than the first.
No proposition is clearer, than that a judicial
tribunal can only bind, by its decision, the par
| 10 r,rocaadtnn IN which n 10