The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-05-13

W
Democratic judges, and the party thought it,
good thing TO administer to the lips of its
opponents their own favOrite ohaliee Hence
the Democratic party, ten or twelve wears AGO.
was coming TO acquiesce in a doctrine which
IL had heretofore constantly denounced as
anti-republioan, and dangerous to liberty. Il
was doubtless because Mr.. Van Buren, thought
this departure from the old Democratic land
marks BODIED infinite mischief in the future,
that he reoited so fully, argued so strenuously,
and made this particular discussion so promi-
nent feature of his book.
The asoendanoy of the Supreme Court over
the other departments of the Government
was not an early doctrine even of the Federal
lists. They considered it as weak in COM
parison with the other two departments,
and relied upon them to give effect to their
anti-republican views. Distrust of the people
was the key to the politics of Hamilton, the
great Federal leader; confidence in the people,
to the politics of Jefferson. Hamilton was
accordingly in favor of a President and Senate
for life, instead of the frequent elections by
which they are kept under the control of the
popular will. 1t was only when the Federal
party was disastrously beaten in the Presi-
Dental election of 1900, that its leaders un-
dertook to make the Supreme Court the
grand pivot of the Government. The Judges
then were all Federalists, and as they had
life tenure, and were thus independent of the
popular will, the great Federal statesmen
thought that they could still carry out their
policy by maintaining the supremacy of that
department of the Government. Accordingly,
at the last session before Mr.. Jeffersons
Inauguration Congress being still Federan.
the inferior courts were remodelled and re-
organized by a great multiplication of Judges,
whose appointment crowded so closed upOn
the expiring hour of Mr.. Adams adminstra-
ton, that they were called, in the heated con-
troversy that immediately arose, Mr.. Adams
midnight Judges" John Marshall, a states
man and lawyer Of prodigious force of in
tellect, and staunch, vigorous Federalist,
then Secretary of Stat was appointed Chief
Justice. That great and revered magistrate
was too fresh from party politics to have at
once acquired a judicial turn of mind and
in pursuance of the new Federal policy, he
brought himself and his Court into Immediate
collision with the Executive. A Washington
Justice of the peace, named Marbury, had been
appointed by Mr.. Adams, confirmed, commits
stoned, and the commission left in the Secre-
tary of States Office for Mr.. Madison, the
new Secretary to deliver. Madison, by JEFF
fersons direction, refused to deliver it. Mar
I bury sued for mdndd,RuS in the Supreme
Court. Madison, by Jeffersons direction,
made no answer, and took nOnotice of the pro-
ceedings, treating both Marbury and the
Court with silent contempt. Chief Justice
Marshall thereupon delivered a most elabo-
rate and lengthy opinion, terminating in the
! Judgment that Marbury had applied for relief
to the wrong tribunal, or, in other words, that
the Supreme Court, as an appellate tribunal,
had not original jurisdiction. AS an awarder
of justice to parties, this was all the Court
need have shown. The question of jurisdic-
ton being the first in order, it ought to
have been first considered. But the
Chief justice, instead of deciding that the
Court had no jurisdiction, and so dismissing
the case, inverted the natural order of discus
sion, and first considered the right of Mar
bury to his commission, which he affirmed,
and afterwards the authority of that Court to
procure it for him, which he denied. BY this
artifce of inversion, the whole case was dis
cussed on its merits, Notwithstanding the
acknowledged want of jurisdiction; discussed
and determined for no cher conceivable pur-
pose than to instruct the new-modeled in
feriOr courts how they ought to decide it
when it should come before them. But the
mdRdamuS was never applied for in an inferior
court. The unexpected courage and decision
manifested by Jefferson caused the Federalists
! to see that he would maintain the indepen-
dence of the Executive, and that in such a
| collision the Judiciary would be poWerless
Moreover, Congress, no longer Federal might
! by repeating certain sections of the Judiciary
act, and modifying others, so cripple the
! Court by limiting its jurisdiction as to render
| it impotent for the further uses the Federalists
| wished to make of it.
Thus the Democratic party, under its first
great leader, met this new pretension of the
! Supreme Court at the frontier; and the De-
mocratic party from that time forward was
deeply indoctrinated with the idea that the
! Court was established to decide suits between
ihgants, and not to give law to the other de-
partments Of the Government. According to
the Democratic idea, there cannot be a more
dangerous doctrine than that the Constitution
is what the Supreme Court may, from time to
time, declare it to be; that the will of body
of men whom the people cannot control is
absolute. Jefferson's writings, down to the
last year of his life, abound in protests against
| this unrepublican doctrine and exposures of
its absurdity. The same question was again
made prominent by the discussions growing
out of President Jackson's celebrated veto of
the United States Bank. The Supreme Court
had decided the bank to be constitutional
General Jackson vetoed it, because in his
opinion it was not. His open disregard of the
Judgment of the Court led TO much inveotive
by the great Whig leaders and lawyers but
neither he nor the party swerVed hair from
their position. Judge White a Senator from
| Tennessee, and then warm supporter of Gen
eral Jackson, followed Mr.. Webster in the
debate, and his exposition was always referred
to by the President as correctly expressing
his own views. The following extract exhibits
the tenor of his argument
1.-The honorable Senator argues that the Con
| stitution has constituted the Supreme Court a
tribunal to decide great Constitutional ques-
| tions such as this; and that wnen lhey have
done so the question is put at rest and every
| other department of the Government must
| acquiesce. This doctrine deny. The Constitu-
| Court, and in such inferior courts as Congress
| may from time to time ordain and establish