The southern press. [volume] (Washington City [i.e. Washington, D.C.]) 1850-1852, 1851-10-15

vduals in all cases, where there 10 no common
arbiter. Indeed, the right OF q principal 70 de-
termine the authority Of his agent ut any lime
aud under all circumstances, Is unlimited, ex-
cept by his own expressed will; and a tortaor,,
where his instructions have been disobeyed. "a
In respect 10 the second relation above re-
ferred to, no question IL clearer, than that De-
tween two or more contracting parties, where
they have constituted no common arDiter, 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 under
some special delegation Of authority to them by
him for he was originally only bound by his
own consent, and in no degree by that OF others.
And how, then, can the extent Of his obliga
tons under the contract be made, except by his
express c. nseni, TO depend upon its construc-
ton by those whose will was no element in such
original binding? In other words, how. in the
constructions is his will Invested OF ats original
power, and their will invested with what was not
their original power in its creation !!
This principle is reco 9nized in it's application
as well to compacts between nations, rs between
individuals. SO far is this the case between ma
tons, that treaties depend alone upon the will
Of each for their obligation; and when either
seeks to enforce its own construction OF the OBJ.
legation of the other, the treaty IL abrogated
ips0 fzcto.
Contracts between individuals, not cognizable
by the courts of the country, or subjected TO
other arbitration by the consent OF the parties,
are only binding upon each according to his
own construction, and even at the will OF either
are determiaable A well known instance OF
this is presented in the of contract invalid
by virtue of the statute of frauds, Or other pro.
hibitory enactmenis.
| If such, then, be the natural rights OF STATE
bound by virtue of these two relations, what
but their prohibition by the Constitution Or their
being Invested by an exclusive delegation 70
some other power, can prevent their exercise oy
lit? t te
Now it is beyond doubt, that it has not been
denied to the State by the terms OF tine Coasttu-
| ton. Has it been delegated to any other power
| in such way as to exclude and dvest the natur-
al and inherent right of the State! This il the
| only question remaining.
| | believe it has generally been conceded, that
no department, except the judicial, has any suen
right delegated to- it as makes it the final arbiter
between State and itself, to the exclusion OF
such rights in the State At all events, one
general remark will suffice for the executive "a
! Legislative departments. The general principle
| in respect to the relation between principal and
agent, would be conclusive against such rightin
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 its existence.
But, il 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
amy express authority or clause to that effect
but az resulting by inference from its general
Jurisdiction in cases 10 law and equity arising
under the Constitution, and the accompanying
clauses.
The power here given, is in its terms only a
judicial power; and rs such, it was necessary 10
have 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 Poioer OF
| the United States shall be vested in one supreme
| court" &C. re. u. s., Art. 3, Sec. !. Its ex'
tent is limited to the decision of cases arising
| judicially, and only Of such. Z. U. s., Art. 3
Sec. 2 There is nothing In its terms which
would show that the Constitution designed to
j give any power OF arbitration TO the supreme
court, except in the judicial cognizance Of causes
arising before IT, as they do before other similar
tribunals. Cgf
i One historical fact strongly confirms this
view In convention it was proposed to author.
ize the other departments 10 call for the opin-
| on of the supreme court on solemn occasions
a proposition never adopted. and inferentially
because not approved. Jour. of Con, 264.
Now IL 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 the
grant Of merely Jrdicicl powers, not only vest
II in the judiciary as TO the extent OF its own,
but Of every other branch of the government
! But there is broader ground Of objection. In
order to it, being such ina arbiter, Gas ]. must
be IL at all by virtue Of its judicial powers only,
as | have shown,) IL must be Invested with three
qualities.
4. II must be competent to decide the ques.
4 ton in issrs nj all.
| q IL must be competent 10 do 30 between
| the government and the State.
/ 3. Its competency must not only exclude all
right on the part Of the Sta e 10 determine il
powers, but all right Of appeal from its decision
by the State 10 IL own final judgment.
As 10 the frat quality, remark, that there are
many and the most important constitutional
questions, IN which the judicial department does
i not possess IT, From their very nature, they
cannot be brought before 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 20 con.
sist in the motive 10 the act, rs 20 be concealed
under the form Of law and Constitution. Such
are those cases, where the government refuses
TO exercise powers essential to our security, in
order to effect our ruin. IN such, the possession
Of constitutional power imposes the dnty Of It's
exercise; and failure 10 fulfil such duty, or the
repeal Of law passed in obedisce to its die
tates, would be as fatal breach Of constitution
al obligation, as a direct Invasion Of right.
IL such a case, can the Judiciary fathom I'M
constitutional intent in The breast Of Congress,
or remove the veil which covers usurpstion ,
Can il declare a refusal TO pass Law nnconsti.
i tutional, and enact IL or command its passage
or can it revive repealed law by declaring the
repeal inconsistent with constitutional duty =
Clearly not.
Another class Of cases may arise, fatal 10 Their
influence, which cannot be framed for Judicial
enquiry, either from the nature Of the question
or the peculiar relations Of parties to il. Thus
practically, the admission Of Texas, or Califor-
mia, the purchase Of Louisiana, are acts, when