The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1898-08-16

~ =
The Federal judiciary is i natural
and from the point OF view Of the mod
crn current Of Federal decisions. Il neccs-
eary element in our Federal government.
"And yet not every Federal govern.
mcnt possesses Federal courts. The
kingdom Of Great Britain and the king
dom Of Ireland with the empire of IN
din and Canada. Australia, and other
British provinces form the British en-
pirc. but England, Scotland. Ireland,
Canada, Australia. India. has each its
separate courts. ana there is no court
With jurisdiction over the British en-
pirc. Prussia. SaNony. Bavaria. and 9th
or German kingdoms have united into
one German confederate empire. but
there is no imperial German court 10
conStruc the statutes Of the imperial
Parliament.
In fact. so unQucStioncd IS now the
power Of the Federal judiciary to annul
4 Federal statute on the ground of its
unconstitutionaIity that we sometimes
forget that this is the only judiciary in
the world 1T any stage Of its history
which has the power to blot Il countryS
laws from her Statute-bOokS. This
power was probably not intended to be
conferred upon the Federal judiciary by
the minority of those who framed the
Constitution. Indeed when the Federal
courts first exercised this power and
declared it rightful very many Of the
best and wiscst looked upon it rs an
%usurpation ultimately fatal to free GOV
crnmcnt: while Thomas Jefferson. hen
in the mellow wisdom of old and hon
ored age. declared that it placed the
people under the despotism Of an oil
garchy.'
In every government ultimate power
must reside somewhere. In England it
is III the Parliament. for its power to
pass laws is supreme and no court AN
declare them void or illegal. In Russia
it is III the Gar. for his will is the only
law and the imperial ukase can neither
be disobeyed or questioned.
In the United States. where resides
this power? IN the people, we might
say. accustomed as we are to think Of
the citizen as the sovereign. But let
us see. The people of the State choose
their legislature which makes their
laws. These laws may be sanctioned by
the courts of the State. But the Federal
judiciary ma pass upon them and de-
clare them void because against the
Constitution of the United States. The
people choose their national representa-
tivcS and senators. and Congress may
aenact statutes which the people approve
But the Federal judiciary may ~abrogatc
these laws and prevent their enforce
mcnt IT deemed contrary to the Federal
Constitution. The governors and the
President may desire to execute the Will
of The people as expressed in the State
and national statutes framed by the
peoples chosen agents. But the Fed
eral judiciary may set aside these stat
utcS and prevent the State and national
executive from enforcing them. Changes
may be attempted in the Fundamental
law Of the land, and 4 majority in the
legislatures Of three-fourths Of the
States may ratify constitutional amend
ments passed by Congress in order 10
change the Constitution so as to carry
int" effect the u%ndouhted viii of a vast
majority of tho people. But the Fcdcrll
courts may declare that these constitt1
tional amendments have not been legally
passed or may construc them away. ant
from such Il judicial declaration there is
no appeal.
"Ihe Fedora Judiciary. therefore. is
the sole repository Of ultimate power III
this republic. and the handful of men
who WELD this power may WELD if rs
long as they live and choose to do so.
For this same judiciary may avoid one
Of its members expulsion from power
by Impeachment by %adiudging the IN.
parchment proceedings to have bccn Il
legal. And not cycn insanity terminates
this power, for, as WIS once ~pitifu!,y
illustrated in on own circuit. Il dement,.
cd Federal Judge is still tho Judge
Death is the only brake upon this iuggcr
naut. But 1t IS Il Very slight and fleet
ing brake. for men who hold office fol
life rarely die, and when they do thoil
successors promptly take their places
and the wheel grinds on us before.
1t may be c~onScrvatiscly said tina.
no greater owe has ever been vostcd
III any officials or in any department o!
any government than is now exercised
by the Federal judiciary. It is. there.
fore. Of the utmost Importance that these
| powers should be exercised with Tho
greatest caution and that the public al
large hould keep upon the possessors
Of such power an eye Jealous Of the first
cncroachment upon liberty
IN an able apology for the Fedora
courts CRITICISM of the Federal Judi
ciary. % Am. Law Rev. p 643) United
States Circuit Judge William II. Taft
himself responsible for some of these
usurpin- decisions. alludcs to what h,
| terms 'JefferSon'S severe words concern
ing the Federal Judiciary and quotes
| Jelfcrson'S 'epithet' in which he de
nounced the Federal Judiciary as a THE
of iurisdiction.' He alludes to the fac
that Jeffcrs0H'S criticism was calle1
forth by the decision i'll Cohens vs.. Nir
! ginia. declaring the power Of the Fedora
court to reverse the decision Of Il State
| Supreme court on the question whether
Il State statute violated the Fedora
| constitutional doctrine which. though
| accepted now. was not expressly g1VeI
by the Federal Constitution. and which
when first promulgated was considered
by the weight Of contemporary opinion
as Il palpablc ~uSurpation Of power by the
Federal courts. 1t is doubted whether
| the Constitution of 1889 would havt
been ratified by Il majority of the State:
it it had contained Il clause giving Sucf
power to the Federal courts. 1t will bt
remembered that Andrew Jackson while
President of the United States, many
| years after this doctrine had become