Year: 1870

anything be more contrary to the facts or more pre-
posterousi In every government. the judicial power


is SUCH and no other and can be no other than such
as the government establishes aud recognizes; and
so far from being incapable of enlargement or dlm-
| mutton, is what the government shall from to time
establish and recognize. We mean, of course, the
constitution of the government. And why should IL
not be II the constitution can enlarge or diinn-
ish the legislative or the executive power at the VIII
Of the people, amending tho constitution. can u not
enlarge or diminish the judicial powerf Surely, so
aduatory recognizer Of the people as " the foun-
tain of power" t would seem, ought TO be the last
to dry up this fountain to diminish its waters or
to stop its flow


The simple question is What is the judicial power
established by the Constitution Let it speak for
itself The third article in its second section. de-
cares it in full. Next what was intended by Its
trainers and what was understood by the people OF
the United States when adopting it, to be It's e&tent
That this extent embraces the very power denied to
il by the Senator. may be "grave imputaton." as
he says alphabetically, upon the legal acumen and
common sense of the framers of the Constitutions"
but that it is not so will now show trusting that
their fame will survive it. Indeed, we believe that
the Senator will not be called upon to sing requiem
over their deuded memories. The two principal
authors of The Fed1Glist were Hamilton and Mad



numbers but, if what he wrote were omitted from
the work, this omission. as has been truly said by
another, would not impair the value of this
great commentary. In the 44th number OF
The F5deraHst previously quoted, while vindicatng
the power conferred upon Congress of passing all
laws necessary and proper for carrying into eKecu
ton the powers vested by the Constitution, Mad
ison observes: " If it be asked what is to be the
consequence in case the Congress shall misconstrue
this part of The Constitution. and exercise powers
not warranted by its trHe meaning, answer The same
as if they should misconstrue or enlarge any other
power vested in them, if the general powers had
been reduced to particulars, and any of these were
to be violated; the same, in short, as if the State
legislatures should violate their respective consttu-
tionai authorities. In the first instance tmark The
eryression in the first instance, the success of the
usurpation will depend the executive and judi
Ciary departments, which are to EXP0UND and give
effect to the legislative acts; aud in the last resort
remedy must be obtained from the people, who can,
by the election Of more faithful representatives an
nu the acts of the usurpers." Such Is the language
of man who deemed it, in part of his after life, his
eminent merit TO espOuse and advocate the stricest
constructions of the Constitution, and the most as
siduous guarded Interpretation and assertion of
State rights.


Nor upon this great subject, it is seen was Hamil-
ton silent nor could it be supposed that he would DO
silent when il is remembered that to him is as
crbed the organization of the judicial power. In
deed whether correctly or not, 10 him the elder
Adams then Yice-President, is stated 10 have as
crbed the framing of the Judiciary act


SO early as 1885, in resolutions prepared by him to
be submitted to Congress- embodying the reasons for
calling General Convention to revise the Confeder
alton, he specifies L" the want of a Federal Judica-
ture" In 17s7 in the 22d number of The federdtis,
he remarks: the want of judiciary power crowns
the defects of the confederation" And while the
Constitution discussed before the people he thus
meets the very objection to the judiciary power, now
most ndiscreetly and unwaTantably preferred


"some perpexity" he observes in the 18th number Of
The FcderdlS respecting the rights OF the courts TO
PRONOUNCE legislative acts void because contrary the
Constitution has arisen from Imagination that the
would imply superiority OF the Judiciary 20
which can declare the acts Of another void must
sary be superior to the whose acts may be declared
void. There Is no position winch depends on
clearer principles than that every act Of delegated
nority contrary to the tenor OF the commission Under
FORE contrary TO the Constitution can be valid 10 deny
this would be to affirm that the deputy greater than
the representatives OF the people are superior to the
people themselves that acting by virtue OF powers
may do not only what their powers do not authorize but
what they forbid it be said that the legislative body
powers and that construction iheY put upon them
IL conclusive upon the other departments 1t may be an





where It is not TO be collected from any particular pro-
visions in the Constitution.


could intend to enable the representatives OF the peo
pie substitute their TH for that OF their constituents
Ii rational to suppose that the courts were
designed TO be an intermediate body between the people
and the Legislature, IN order among other things to
iy. The Interpretation Of the laws the proper and tho
peculiar provision OF the courts Constitution IN
fact aud must be regarded by the judges funda-
mental law. IL must therefore belong TO them TO asc


tain it, meaning as well the meaning 81 any particu
Ia act
should happen 10 be an irTecOncabe variance between
the two that which has the superior obligation and va


dity ought of course 10 be preferred In other words,
the Constitution ought 10 be preferred TO the statute the
intention of the people TO the intention Of their agents.
Nor does the conclusion by means suppose supeIi
Orty Of the Judicial 10 the Legislative power II only
suppOscs that the power OF the people is superior 10 both
and that where the will Of the Legislature, declared in its
statutes stands IN opposition TO mat OF tue people de-
erned 0y the latter rather than The former They ought
rather than by those which are not Fundamental"


The quotations will not be followed farther, for
the reason that the ground here taken by principal
framer and the chief expounder of the Constitution,
is mpregnable; and ustiiies the assent of every
lecting lover of it, to the pregnant language of
Hamilton "The courts of justice are to be considered
as the bulwarks of limited Constitution y not that
their power TO expound the Constitution and the
laws stands upon higher ground than if it were
directly conferred by the Constitution; but that lit
is deducible from the general theory of a limited
Constitution, and far il is trne, is equally APP
pcabe TO most, if not all, the State governments"
Limitations can be preserved in practice
in no other ray than through the mediums of the
courts of justice whose duty it must be to declare all
acts contrary the manifest tenor Of the Constitu
tion void"


What, and how many, Ithese limitations arc,
not only in the Constitution itself but necessarily
arising from the coexistence of national Govern
ment and numerous State governments, il is un-
necessary to indicate; but that they are.such and
many that the denier of the judicial power 10 the