CHAPTER VII.

Renewed Attempt of the Federalists to give the Judiciary a

controlling power over the other Departments on the occasion of the

Bank Veto by President Jackson--Importance of the Principle of a

clear Division of Powers between the several Departments, and the

Independence of each--Assertion of the Principle by Jackson in his

Veto Message--Unguarded expression therein--Substantial Endorsement

by Webster of Jackson's Doctrine as to the Independence of the

Executive--Character of the Contest waged against Jackson on behalf

of the Bank--Violent and disingenuous course of Webster and Clay in

the Debate--The true Doctrine declared by Senator White--Its great

Importance--Merits of the Question discussed--The Judgment of the

People the ultimate Test--Instances of the effectual exercise of

that Judgment--Distrust of the Federalist Leaders as to the

Capacity of the People.

The most imposing, and I may add the most important occasion,

unconnected with judicial proceedings, on which the successors of the

old Federal party, encouraged by the success of the Supreme Court in

modern times, sought to avail themselves of the principle of the

controlling power of the judiciary over the other departments of the

Government in regard to questions of constitutional power, for which it

had early and long contended, was that of the veto of President Jackson

against the passage of the bill for the incorporation of the Bank of the

United States.

In addition to the great and permanent importance it is to the

Government and the country to keep down this heresy, we have in this

case a scarcely less potent inducement for giving the matter a very

thorough consideration, founded in a desire to do justice to the conduct

and character of that great and good man.

The division of the powers of the Federal Government into distinct and

independent departments is founded on a principle the value of which has

never been lost sight of by the framers of governments designed to be

free. It must at the same time be admitted that, among the principles

which necessarily enter into such a system, there are not many so

difficult to define with desirable certainty or to uphold in practice.

The faithful and capable men who constructed ours, state as well as

national, have been as successful, I believe, in this respect as any who

have gone before them; and the efforts which have been so perseveringly

made to counteract their patriotic designs must be attributed to an

inherent spirit of encroachment which is inseparable from power in whose

hands soever it may be placed.

The veto message contained the following passage:--"If the opinion of

the Supreme Court covered the whole ground of this act, it ought not to

control the coördinate authorities of this Government. The Congress, the

executive, and the court must each for itself be guided by its own

opinion of the Constitution. Each public officer, who takes an oath to

support the Constitution, swears that he will support it as he

understands it, and not as it is understood by others. It is as much the

duty of the House of Representatives, of the Senate and of the

President, to decide upon the constitutionality of any bill or

resolution which may be presented to them for passage or approval, as it

is of the supreme judges when it may be brought before them for judicial

decision. The opinion of the judges has no more authority over Congress

than the opinion of Congress has over the judges; and on that point the

President is independent of both. The authority of the Supreme Court

must not, therefore, be permitted to control the Congress or the

executive when acting in their legislative capacities, but to have only

such influence as the force of their reasoning may deserve."

To present an intelligible view of this matter, the gravity of which

cannot fail to be appreciated as we proceed, it is necessary that we

should in the first place ascertain and define the leading idea which

its author intended to convey by the words he employed. The entire

paragraph is replete with distinct avowals of his meaning, but in the

midst of them are to be found a few words by which its true sense is

exposed to cavil and perversion. This was a point upon which General

Jackson was very liable to err, notwithstanding his natural and in other

matters practiced wariness,--a qualification with which few men were

more amply endowed than himself. The spirit by which alone free

governments can be sustained was deeply planted in his breast by the

hand of Nature; quickened into life by the blows of the enemy, whilst a

prisoner and yet a stripling, it grew with his growth and strengthened

with his strength. But possessed of a mind that was ever dealing with

the substance of things, he was not very careful in regard to the

precise terms in which his principles were defined. He was, besides, at

that moment placed in a peculiar as well as difficult situation. Whilst

struggling with an institution which felt itself sufficiently powerful

to measure strength with the Government, and which had been itself stung

to madness by his refusal to submit to its arbitrary demands, he was

deprived of the assistance of the leading members of his cabinet. The

Secretary of the Treasury, to whose department the subject belonged,

had, in his report to Congress, placed himself on record in favor of the

bank, and the Secretaries of State and of War concurred in his opinion;

all three openly disapproved of, and could not cordially coöperate in,

the measure the President was about to adopt--the Secretaries of the

Treasury and of War, as will be seen by the letters of General Jackson

to myself, which on account of the interesting matters to which they

relate will be given with these memoirs,[36] pressing their opposition

so far as to make it sufficient ground for proposing to retire from his

cabinet--a step they were with difficulty prevented from carrying into

immediate effect. That a document of such length, prepared on the spur

of the occasion and under such untoward and exciting circumstances,

should not have been even more vulnerable to the assaults of his astute

and implacable opponents, is not a little surprising.

[36] The correspondence, including the letters of President Jackson,

has received the same direction with the other MSS. of the Author.

See introduction to this volume. Eds.

Few had better opportunities for knowing the state of feeling which

prevailed at the Presidential mansion, whilst this matter was in

progress, than myself. I arrived at New York from my brief mission to

England after the Bank Bill had passed both Houses and on the day it was

sent to President Jackson for his approval, and left the next morning

for Washington. Arriving there at midnight, I proceeded at once to the

White House, in pursuance of an invitation he had sent to New York in

anticipation of my coming. I found the General in bed, supported by

pillows, in miserable health, but awake and awaiting and expecting me.

Before suffering me to take a seat, and whilst still holding my hand he,

with characteristic eagerness when in the execution of weighty concerns,

spoke to me of the bank--of the bill that had been sent for his

approval, and of the satisfaction he derived from my arrival at so

critical a moment; and I have not forgotten the gratification which

beamed from his countenance when I expressed a hope that he would veto

it, and when I declared my opinion that it was in that way only he could

discharge the great duty he owed to the country and to himself. Not

that he was ignorant of my views upon the subject, for in all our

conversations in respect to it before I left the country,--and they had

been frequent and anxious,--my voice had been decided as well against

the then existing, as against any other national bank. Neither that he

was himself in doubt as to the course that he ought to pursue, for he

entertained none. But the satisfaction he evinced, and which he

expressed in the most gratifying terms, arose solely from the relief he

derived from finding himself so cordially sustained in a step he had

determined to take but in respect to which he had been severely

harassed, by the stand taken by the leading members of his cabinet and

by the remonstrances of many timid and not a few false friends, and had

as yet been encouraged only by the few about him in comparatively

subordinate positions who were alike faithful to principle and to

himself.

The veto message was prepared and sent in whilst I remained at

Washington. The manuscript was at all times open to my inspection,

although I had but little direct agency in its construction. Had it been

otherwise, the few words which subsequently made that part in which they

appear so conspicuous could not have escaped my notice.

The paragraph in the message which sets forth the constitutional

principles which President Jackson intended to avow, contains the

following declarations: 1st. That if the opinion of the Supreme Court

covered the whole ground of the act under consideration, still it ought

not to control the coördinate authorities of the Government. 2d. That

the Congress, the Executive, and the Court must each for itself be

guided by its own opinions of the Constitution. 3d. That it is as much

the duty of the House of Representatives, of the Senate, and of the

President, to decide upon any Bill or Resolution that may be presented

to them for passage or approval, as it is for the supreme judges when

brought before them for judicial decision. 4th. That the opinion of the

judges has no more authority over Congress than the opinion of Congress

has over the judges, and that on that point the President is independent

of both. 5th. That the authority of the Supreme Court should not

therefore be permitted to control the Congress or the Executive, when

acting in their legislative capacities, but to have only such influence

as the force of their reasoning may deserve. In none of these avowals is

the principle of irresponsibility in respect to the opinion of the

Supreme Court, by fair construction much less by necessary implication,

carried farther than to include the President when discharging his

official duties as the depository of the executive power of the

Government in approving or disapproving of a Bill or Resolution sent to

him by Congress for his executive action. That in all this he was

perfectly right, it will be seen even Mr. Webster, latitudinarian as he

was, did not venture to controvert.

But in the midst of these declarations are found these unguarded words:

"Each public officer who takes an oath to support the Constitution,

swears that he will support it as he understands it and not as it is

understood by others." Either this declaration was applied by the

President only to all _such_ officers as those of whom he had been

speaking before and of whom alone he spoke afterwards, all in the same

paragraph,--to that class of officers who, singly as was his own case,

or in conjunction with others as was the case with some, constituted the

three great departments of the Government, whilst acting in their

respective official capacities, as it was beyond all doubt intended to

be applied; or he must be supposed to have held that the inferior judges

of the federal courts had a right to say to the superior court, "We do

not understand the Constitution as you have expounded it, and we will

therefore not submit to your decision;" the same as to the judges of the

State courts of every grade, and as to the officers of the custom-house

and innumerable other officers of his own appointment; empowering the

latter on the same ground to refuse to conform to the instructions sent

to them, &c., &c. A construction, one would think, too preposterous for

credulity itself to swallow.

The plain and well-understood substance of what he said was that in

giving or withholding his assent to the bill for the re-charter of the

bank it was his right and duty to decide the question of its

constitutionality for himself, uninfluenced by any opinion or judgment

which the Supreme Court had pronounced upon that point, farther than his

judgment was satisfied by the reason which it had given for its

decision. This covered the whole ground. It explained fully his views of

the Constitution in respect to what he was doing. All beyond was both

uncalled for and unnecessary. To this view of the President's power and

duty under the Constitution Mr. Webster assented in the fullest manner.

He said,--"It is true that each branch of the legislature has an

undoubted right, in the exercise of its functions, to consider the

constitutionality of a law proposed to be passed. This is naturally a

part of its duty, and neither branch can be compelled to pass any law,

or do any other act, which it deems to be beyond the reach of its

constitutional power. The President has the same right when a bill is

presented for his approval; for he is doubtless bound to consider, in

all cases, whether such bill be compatible with the Constitution, and

whether he can approve it consistently with his oath of office."

If the supporters of the bank had been willing to judge the President by

the claim of power under the Constitution which he intended to advance

in his veto message, there would have been a perfect accord of opinion

between him and their great leader in the debate upon that document, and

one disturbing element would have been withdrawn from the severe

agitation to which the public mind was exposed. But this course neither

suited the interest of the bank, nor would it have comported with the

excited feelings of the implacable enemies of the President. Matters had

worked to their liking. By forcing the bill through the two Houses at

the eve of the struggle for the President's reëlection, and thus

compelling him either to sign or to encounter the responsibility of

defeating it, they felt that they had involved the great opponent of the

bank,--the only man whose power with the people they really dreaded--in

toils from which his escape would be impossible. They were engaged in

framing an issue with President Jackson and the Democratic party,

looking at that time only to the defeat of his reëlection but which was

in 1834 so extended as to involve consequences second only in their

importance to those of our struggle for independence from the mother

country,--an issue, which was to decide whether the control by the

people in affairs of government, the fruit of that great contest, should

be continued, or be made to give place to a government controlled by the

money power of the country, the trial of which continued much longer

than that of the Revolution, and the ultimate results of which were the

extinguishment of the bank and the first direct overthrow of the

Democratic party since its accession to power in 1800. Able to count

their votes in both Houses, and certain of a majority in each, the

leading friends of the bank reserved their greatest efforts for the

discussion of the veto, the interposition of which they understood the

man they had to contend with too well to doubt.

Mr. Webster was designated by the supporters of the bank to open the

discussion, and a more competent man, or one better suited for the

purpose, could not have been selected. Among our public men there have

doubtless been several whose mental endowments were in some particulars

superior to his. Hamilton possessed more genius and eloquence. Between

Clay and Webster the same disparity existed, though not in the same

degree. But as a close and powerful reasoner, an adroit and wary

debater,--one capable of taking comprehensive, and at the same time

close views of his subject; who surveyed all the points in his case, the

weak as well as the strong, and dealt with each in the way best

calculated to serve his purpose, and to reduce the advantage of his

antagonist to the lowest allowable point, and who was withal

unscrupulous in the employment of his great powers,--he was in his day

unsurpassed. Backed by a powerful moneyed institution--prepared to use

its overflowing resources to any necessary extent; having Mr. Clay on

his side; and knowing that what he said would, by means of the money of

the bank, be brought to every mansion, and forced into every cabin, and

made the subject of eulogy by a vast preponderance of the public press;

it is not possible to conceive of circumstances better calculated to

bring out Mr. Webster's capacities to the utmost. Those who have the

curiosity to turn to the record of his vigorous effort on that occasion

will see a favorable specimen of the art in which he was so great a

master. His opening speech was designed to give the cue to his party,

its orators and presses, in respect to the grounds upon which the

election was to be contested. It contained an official programme of the

campaign, showing that denunciation and intimidation were the principal

weapons to be employed, and was itself the first gun fired in that

direction--the signal that was to summon their political friends to the

field, and to begin the attempt to fright the country from its

propriety.

Mr. Webster opened his speech with statements from which the following

are extracts: "Let us look at known facts. Thirty millions of the

capital of the bank are now out, on loans and discounts, in the States

on the Mississippi and its waters; ten of these millions on the discount

of bills of exchange, foreign and domestic, and twenty millions loaned

on promissory notes. The whole debt is to be paid, and within the same

time the circulation withdrawn.

"The local banks, where there are such, will be able to afford little

assistance, because they themselves will feel a full share of the

pressure. They will not be in a condition to extend their discounts; but

in all probability, obliged to curtail them.... I hesitate not to say

that, as this veto travels to the West, it will depreciate the value of

every man's property from the Atlantic States to the capital of

Missouri. Its effects will be felt in the price of lands--the great and

leading article of Western property; in the price of crops; in the

products of labor; in the repression of enterprise; and in embarrassment

to every kind of business and occupation. I state this opinion strongly,

because I have no doubt of its truth, and am willing its correctness

should be judged by the event.... To call in this loan at the rate of

eight millions a year, in addition to the interest on the whole, and to

take away, at the same time, that circulation which constitutes so great

a portion of the medium of payment throughout that whole region, is an

operation which, however wisely conducted, cannot but inflict a blow on

the community of tremendous force and frightful consequences. The thing

cannot be done without distress, bankruptcy, and ruin to many....

"A great majority of the people are satisfied with the bank as it is,

and desirous that it should be continued. They wished no change. The

strength of this public sentiment has carried the bill through Congress,

against all the influence of the administration, and all the power of

organized party. But the President has undertaken, on his own

responsibility, to arrest the measure, by refusing his assent to the

bill. He is answerable for the consequences, therefore, which

necessarily follow the change which the expiration of the bank charter

may produce; and if these consequences shall prove disastrous, they can

fairly be ascribed to his policy only, and to the policy of his

administration."

These alarming consequences were portrayed as the unavoidable result of

a failure on the part of the people to effect a change in our public

councils, before the expiration of the charter of the bank, which could

only be done at the then next election.

No old school Federalist, who had grown to man's estate with views and

opinions in regard to the character of the people which that faith

seldom failed to inspire, could doubt the efficacy of such an exposition

in turning the minds of all classes of the community in the desired

direction. The idea of producing the catastrophe, thus held up to public

view, through the direct action of the bank--a proceeding justly

stigmatized as "flagitious," in his recent letter to the New York

bankers, by Mr. Appleton of Boston, a distinguished and highly trusted

Whig, who was in those days admitted behind the curtain and had a view

of the whole ground,--had not at that time, I am satisfied, entered into

the mind of Mr. Biddle, or perhaps into that of the most reckless

advocate of the bank. But the sagacious leader of the Whig party

understood too well the extent of General Jackson's popularity and the

strength of the Democratic party to think for a moment that an attempt

to carry a Presidential election against the power of both could safely

be treated as a holiday affair. He knew that by far the largest portion

of the classes most likely to be affected by appeals to their pecuniary

interests were already on the side of the bank, and that the only chance

of success in the election depended upon their ability to make

impressions favorable to their views upon classes differently situated,

and who in general politics were on the same side with the President. He

was also well aware that among the admirers and sincere friends of

General Jackson, there were in every State not a few who, confiding

fully in his integrity, believing him engaged in continual struggles for

the public good with a reckless opposition and sincerely wishing him

success, yet distrusted his prudence, listened readily to the reports of

his enemies prejudicial to his character, and were kept in constant

apprehension that he would, through passion or ill advisement, commit

some rash act. Virginia abounded in that class of politicians. My

quondam friend Ritchie scarcely ever went to bed in those exciting times

without apprehension that he would wake up to hear of some _coup d'etat_

by the General, which he would be called on to explain or defend, and

his letters to me were filled with remonstrances and cautions upon the

subject. A vacancy occurring in the office of Attorney-General of the

United States, I recommended the appointment of Mr. Daniel, now one of

the justices of the Supreme Court of the United States, for the place.

He came to Washington, was pleased with the invitation to take a seat in

the Cabinet, which the General authorized me to give him, was pleased

also with the office and would have been glad to accept it under other

circumstances, but was, notwithstanding, induced to decline it, after a

day's consultation with me, by considerations of that character

exclusively. The General was not a little amused, after our friend left

us, to hear me attribute his refusal to an apprehension that he might,

in the discharge of his official duties be reduced to the necessity of

acting against the principles of '98, or against his, the General's

wishes--an alternative that he preferred not to encounter. I am free to

confess that before I came to understand General Jackson as well as I

subsequently did I had not a little of the same feeling. I had seen

enough of him in the Senate, whilst occupying different sides in mere

party politics, to satisfy me that he was incapable of acting knowingly

against the public interest, but it was some time before I became

thoroughly satisfied that I did not do full justice to his prudence. I

will allude to a single occurrence bearing upon this point. His

successful effort to remove the Indians to their Western home is well

known and ought never to be forgotten, for there has scarcely been a

single act of his life which has proved more beneficial to all parties

than that. When the act conferring upon him the necessary powers was

before Congress, which was at an early period of his administration, it

was found difficult to prevail on the Pennsylvanian members of the House

to support it. They were believed to be influenced by an apprehension

that by supporting it they would give offense to the Quakers who, as is

known, are very numerous in their State. He invited them to an interview

which he asked me to attend. He remonstrated with those who came in an

earnest and really eloquent manner; placed before them very forcibly the

importance of the movement as well to the Indians as to the country;

refuted the reasons which were given for their doubts, and as they rose

to leave him, under indications not favorable to his wishes, he told

them, with much emphasis, that he could not believe that the reasons

they had assigned were the true motives by which they were actuated;

that they were men of too much sense not to see that the measure was a

proper one, but that they were afraid of their popularity; that they

stood more in dread of displeasing the Quakers than they did of doing

wrong; conjured them to rise superior to such motives, and to do what

was right, regardless of personal consequences; told them they would

find that to be the best way to make themselves popular, and concluded

by saying that he should do his duty in this respect, and if the bill

failed for the want of their vote it would not be his fault if their

constituents were not supplied with means for forming a correct judgment

between them and him. This was the substance of what was said, and said

with considerable animation, I observed his eye directed toward me

whilst he was speaking, and the moment the door closed on the retiring

delegation he turned to me with a smile upon his countenance and said

with the blandest manner, "I saw that my remarks disturbed you." I

admitted the fact, and said that although they were his friends,

personal as well as political, I was apprehensive that his observations,

if they were made public, however true and just, might in the then

feverish state of the public mind give countenance to the

representations of his enemies. His reply was: "No, my friend, I have

great respect for your judgment, but you do not understand these

gentlemen as well as I do. They are quite honest, and wish to do what is

right, but are prevented from doing it by precisely the considerations

to which I alluded. They will not be offended, because they know I am

their friend, and act only for the public good, and you will see that

they will show a different disposition upon the subject"--and they did

so. My apprehensions were more on account of what I feared he might say,

from the excited manner in which he spoke, than on account of what he

did actually say; and this was but one of numerous instances in which I

observed a similar contradiction between his apparent undue excitement

and his real coolness and self-possession in which, I may say with

truth, he was seldom if ever wanting. It was to the class of Jackson's

supporters which I have described, men of Mr. Daniel's school, that

Webster made his most powerful appeal; to alarm and influence them his

powers were exerted to their utmost point. To do this with any chance of

success a perversion of the Veto Message was indispensable. We have seen

that he was obliged to admit that the President had a right, under the

Constitution, to do all that he proposed by the veto. He had sworn to

protect the Constitution as the chief executive officer of the

government; and when an act was offered for his approval which he

honestly believed was contrary to that instrument, he had the right--not

the power only but the right also--to withhold his assent. This Mr.

Webster admitted in so many words, and President Jackson did not by the

message propose to do any thing more. And yet Webster denounced him as a

ruthless tyrant, who was violating the Constitution, and uprooting the

foundations of society. Look at some of his fierce denunciations: "He

asserts a right of individual judgment on constitutional questions,

which is totally inconsistent with any proper administration of the

Government, or any regular execution of the laws. Social disorder,

entire uncertainty in regard to individual rights and individual duties,

the cessation of legal authority, confusion, the dissolution of free

government,--all these are inevitable consequences of the principles

adopted by the message, whenever they shall be carried to their full

extent.... That which is now claimed for the President is, in truth,

nothing less, and nothing else than the old dispensing power asserted by

the Kings of England in the worst of times--the very climax, indeed, of

all the preposterous pretensions of the Tudor and the Stuart races.

"According to the doctrines put forth by the President, although

Congress may have passed a law, and although the Supreme Court may have

pronounced it constitutional, yet it is, nevertheless, no law at all, if

he in his good pleasure, sees fit to deny its effect; in other words, to

repeal and annul it. Sir, no President, and no public man, ever before

advanced such doctrines in the face of the nation. There never was

before a moment in which any President would have been tolerated in

asserting such claim to despotic power.... If these opinions of the

President be maintained, there is an end of all law and all judicial

authority. Statutes are but recommendations, judgments no more than

opinions. Both are equally destitute of binding force. Such a universal

power as is now claimed for him--a power of judging over the laws and

over the decisions of the tribunal--is nothing else than pure despotism.

If conceded to him, it makes him at once what Louis the Fourteenth

proclaimed himself to be when he said 'I am the State.'"

Now where was his warrant for these scandalous denunciations? Was it to

be found in the words "every officer," etc. to which I have referred? If

so, common fairness required that he should have set them forth so that

the readers of his speech might judge for themselves what the President

intended by them. This he was too sagacious to do, for if he named them

he was bound to give the whole paragraph. If he omitted this the

President's friends would have pointed out the deception. If he gave the

whole his readers would have seen that General Jackson could not have

used the words in the sense attributed to them by Mr. Webster. In this

dilemma he contented himself with substituting bold and reckless

assumption for proof. Mr. Clay was less cautious, as it was his nature

to be; he extracted the obnoxious words without the context, and

founded upon them charges like these,--charges by which none who read

his speech would have been misled if he had quoted the message

fairly:--"There are some parts of his message that ought to excite deep

alarm, and that especially in which the President announces that each

public officer may interpret the Constitution as he pleases. His

language is 'each public officer, who takes an oath to support the

Constitution, swears that he will support it as he understands it and

not as it is understood by others.' 'The opinion of the judges has no

more authority over Congress than the opinion of Congress has over the

judges; and on that point the President is independent of both.' Now,

Mr. President, I conceive, with great deference, that the President has

mistaken the purport of the oath to support the Constitution of the

United States. No one swears to support it as he understands it, but to

support it simply as it is in truth. All men are bound to obey the laws,

of which the Constitution is the supreme; but must they obey them as

they are, or as they understand them? If the obligation of obedience is

limited and controlled by the measure of information, in other words if

the party is bound to obey the Constitution only as he understands it,

what would be the consequence?" No warrant for these broad and unfounded

imputations, on the part of either of the senators, was to be found in

the fact that the objections to the new Bank Bill applied equally to the

old, nor for the ground thence assumed that it was the intention of

President Jackson to treat that as a nullity and to embarrass its

directors in winding up its concerns. There was not only nothing in the

message to justify such a charge, but its whole character was directly

opposite, and that too plainly to be controverted. His agency was not

necessary to enable them to wind it up. The courts were sufficient for

that, and they were on the side of the bank. Even if it were otherwise,

there were legitimate considerations which would have justified him in

allowing a charter which had received the sanction of a predecessor in

office to proceed to its consummation, whatever he might think of its

constitutionality. Nor had Mr. Webster or Mr. Clay a moment's doubt that

it was his intention to do so. Their violent not to say savage tirades

against the veteran had a different object--and that was the election.

There, fortunately, they were unsuccessful, or we might yet have been in

our Federal relations, as we unhappily are in those of the States, a

bank-ridden people.

But I cannot allow this great constitutional question, respecting the

relation which the three great departments of the Federal

Government--executive, legislative, and judicial--were by the

Constitution designed to occupy toward each other, to pass without

farther notice. One more vitally important has not arisen nor can ever

arise out of our complex and peculiar form of government, and it is also

one which there is reason to apprehend has not been studied with

adequate care, by many who are in other respects sufficiently astute in

detecting constitutional encroachments.

General Jackson--though owing to his military employment he had not been

for many years of his life much engaged in party politics--was yet, from

a very early period, strongly imbued with the principles of the fathers

of the republican school in regard to the objects and only legitimate

purposes of Government and the true construction of the Federal

Constitution. His views in these respects were sufficiently disclosed in

the course of his brief services in both Houses of Congress, during the

administration of Washington, and more particularly in his celebrated

letter to Williamson about the year 1800.

Judge White, then his personal and political friend, followed Mr.

Webster in the debate on the Veto Message and in the course of his

speech laid down, in a perspicuous and satisfactory manner, the

principles applicable to the question of the relative powers and duties

of the several departments of the General Government which President

Jackson then, as he had at all times, sustained. Deeply incensed at the

gross perversions of his message, on the part of the advocates of the

bank, but at all times and under all circumstances against parleying

with his enemies in the midst of a battle, the President contented

himself with frequent and unreserved expression of concurrence in the

views which had been taken of the subject, on the floor of the Senate,

by Judge White, and although reëlected under the clamor which had been

raised against him upon that point, and more determined than ever to

prevent, by all constitutional means, the extension of the charter of

the existing bank, he was equally decided, as he had always been, not to

interpose, nor did he interpose, any obstructions to the employment by

it of all the means provided by the charter to conduct business to its

end and to wind up its affairs after its termination.

Senator White's definition of the Constitution was expressed in the

following words: "The honorable Senator argues that the Constitution has

constituted the Supreme Court a tribunal to decide great constitutional

questions, such as this; and that when they have done so, the question

is put at rest, and every other department of the government must

acquiesce. This doctrine I deny. The Constitution vests 'the judicial

power in a Supreme Court, and in such inferior courts as Congress may

from time to time ordain and establish.' Whenever a suit is commenced

and prosecuted in the courts of the United States, of which they have

jurisdiction, and such suit is decided by the Supreme Court,--as that is

the court of last resort,--its decision is final and conclusive between

the parties. But as an authority it does not bind either the Congress or

the President of the United States. If either of these coördinate

departments is afterwards called upon to perform an official act, and

conscientiously believes the performance of that act will be a violation

of the Constitution, they are not bound to perform it, but, on the

contrary, are as much at liberty to decline acting as if no such

decision had been made.... If different interpretations are put upon the

Constitution by the different departments, the people is the tribunal to

settle the dispute. Each of the departments is the agent of the people,

doing their business according to the powers conferred; and where there

is a disagreement as to the extent of these powers, the people

themselves, through the ballot-boxes, must settle it."

This is the true view of the Constitution. It is that which was taken by

those who framed and adopted it, and by the founders of the Democratic

party. It is one which was universally acquiesced in at the formation of

the Government, and for some time thereafter. It is a matter of great

moment, and one which cannot be too closely scrutinized, especially at

the present moment when there is abundant reason to apprehend that

heresies of a marked character in respect to it are being infused into

the public mind. The principle which inculcates the necessity of

distributing the powers of government among several departments, and

that they should be independent of each other in the performance of the

duties assigned to them by the Constitution, has united in its favor the

opinions of the friends of liberty everywhere from a very early period

to the present time. Montesquieu said: "There can be no liberty where

the legislative and executive powers are united in the same person or

body of magistrates;" or "if the power of judging be not separated from

the legislative and executive powers." The American Revolution provided

the fairest opportunity to test the merits of this doctrine that the

world had ever seen, and it was not lost sight of by the statesmen of

that day. Many of the States recorded their adherence to it on the face

of their constitutions, some of which were framed and adopted _flagrante

bello_, and all paid due respect to it in the construction of their

organic laws. The settlement and ratification of the Federal

Constitution carried the discussion of its merit to our national

councils where, and more particularly in the discussion upon the

question of ratification, the matter was very closely examined and by

very able hands. The opponents of the Constitution resisted it earnestly

and with ability, on the ground, amongst others, that it did not provide

sufficient guarantees to protect the departments from reciprocal

encroachments, and to secure the required independence of each. The

difficulties, inherent in the very nature of government, of carrying

those securities to an extent which would silence cavil in respect to

them, obtained for this objection advantages which, in view of the well

understood reverence of the people for the main principle, caused no

small degree of inquietude to those able defenders of the

Constitution--Madison, Hamilton, and Jay. The numbers of the

"Federalist" which touch upon this point are full of interest and will

well repay re-perusal. They afford the strongest evidence of an earnest

adherence, on the part of those great men, to the general principle, and

will, if I do not deceive myself, be found quite inconsistent with

several positions which have since been taken upon the subject. In the

47th number of the "Federalist," Mr. Madison thus expresses his own

views, and of course those of his associates, Hamilton and Jay, as they

acted in concert: "One of the principal objections inculcated by the

more respectable adversaries to the Constitution, is its supposed

violation of the political maxim that the legislative, executive and

judiciary departments ought to be separate and distinct. In the

structure of the Federal Government no regard, it is said, seems to have

been paid to this essential precaution in favor of liberty. The several

departments of power are distributed and blended in such a manner as at

once to destroy all symmetry and beauty of form, and to expose some of

the essential parts of the edifice to the danger of being crushed by the

disproportionate weight of other parts.

"No political truth is certainly of greater intrinsic value, or is

stamped with the authority of more enlightened patrons of liberty, than

that on which the objection is founded. The accumulation of all powers,

legislative, executive, and judiciary in the same hands, whether of one,

a few, or many, and whether hereditary, self-appointed, or elective, may

justly be pronounced the very definition of tyranny. Were the Federal

Constitution, therefore, really chargeable with this accumulation of

power, or with a mixture of powers having a dangerous tendency to such

an accumulation, no further arguments would be necessary to inspire a

universal reprobation of the system".... In No. 48, speaking of the

three great departments, he says: "It is equally evident that neither of

them ought to possess, directly or indirectly, an overruling influence

over the others in the administration of their respective powers." ...

In No. 49, he notices a proposition of Mr. Jefferson to authorize a

Convention upon a call of two of the three departments, for "altering

the Constitution or correcting breaches of it," and says,--"The several

departments being perfectly coördinate by the terms of their common

commission, neither of them, it is evident, can pretend to an exclusive

or superior right of settling the boundaries between their respective

powers." He then goes on to urge objections to too frequent appeals to

the people in that form, and sustains the opinion that it would be

better to rely on other safeguards against encroachments which he

details. In Nos. 78 and 81, General Hamilton, admitting that "there is

no liberty where the power of judging be not separated from the

legislative and executive powers," shows at great length the comparative

weakness of the judicial power, and the very slight probability that

"the general liberty of the people can ever be endangered from that

quarter."

The provisions of the Constitution will be searched in vain for any

which indicate a design on the part of its framers to give to one of the

departments power to control the action of another in respect to its

departmental duties under that instrument. All _legislative power_

granted by the Constitution was vested in a Congress, to be composed of

two Houses. The _executive power_ of the Government was vested in a

President. Specific powers to be exercised in conjunction with the

Senate, as well as some in respect to which a question might arise

whether they would otherwise have passed to the executive, were added,

but the Constitution in respect to the legislative power, contained no

limitations or restrictions. All executive authority to be exercised

under it was granted to the President, and he was hence spoken of by the

writers of the "Federalist" as the _sole depositary_ of executive power.

By the third article of the Constitution the same expression is used in

respect to the Supreme Court, &c.: "_The judicial power of_ the United

States shall be vested in _one Supreme Court_ and certain inferior

tribunals." But as these terms would, standing by themselves, have

conveyed all the judicial power of the United States to the Supreme

Court, and as no such grant could be properly made because a large share

of it had, in a previous part of the Constitution, been granted to a

court of impeachment, of which the Supreme Court only supplied the

presiding officer on a single occasion,--the trial of a President,--and

was designed to be still farther restricted, the Constitution

immediately proceeds to say, that "The judicial power shall extend to

all cases in law and equity arising under this Constitution, the laws of

the United States, and treaties made, or which shall be made, under

their authority; to all cases affecting, ambassadors, other public

ministers, and consuls; to all cases of admiralty and maritime

jurisdiction, etc." No oath to support the Constitution is prescribed by

it, in regard to the incumbents of the legislative or judicial branches

of the Government, other than the general provision that all officers of

a certain description, (which included them,) whether belonging to the

Federal or State governments, should swear to support the Federal

Constitution.

In regard to the executive department the case is very different. The

Constitution requires from the President, and from him only, that he

should, in addition to the oath of office, before he enter upon its

duties, swear "_that he will, to the best of his ability, preserve,

protect, and defend the Constitution of the United States_."

Is it not surprising that under a Constitution so constructed,

exhibiting on its face such features, the idea should ever have been

advanced that it was to the judicial power of the Government that its

framers looked for the preservation of that sacred instrument? So far as

it concerns the private rights of citizens and foreigners in questions

of _meum and tuum_, growing out of the laws and Constitution of the

United States, or controversies regarding the separate and special

interests of contending States, or of the United States, and in respect

to the rights of foreign ministers and consuls, it was intended to be

supreme and so made, nor has its supremacy in all these respects ever

been questioned. But it seems very absurd to suppose that it was

intended to oblige the President of the United States,--the officer

clothed with the whole executive power of the Government; the only

officer, except the Vice-President, who is chosen by the whole people of

the United States; the champion, designated by the Constitution itself

to "preserve, protect, and defend" it in the performance of the

executive duties committed to his charge,--duties affecting what

Hamilton happily describes as "the general liberty of the people," to

distinguish it from affairs of _meum and tuum_,--to keep his eye upon

the Supreme Court calendar, and to gather from its decisions in respect

to the private rights of parties litigant the measure of his

constitutional powers, and to stop or go on in the execution of the

important national offices assigned to his department as its judgments

may be deemed to authorize or forbid his further proceeding. I can

easily understand why a class of men, born with certain dispositions and

trained to corresponding opinions, should desire such a construction of

the Federal Constitution; but in the face of facts and considerations

like these, I can find no explanation of the boldness with which so

groundless a pretension has been advanced, other than in the

recklessness by which the spirit of political encroachment is and will

be characterized as long as it finds facilities for its gratification in

the weakness or the passions of mankind. The deeper the subject is

looked into, the more apparent to all _bonâ fide_ searchers for truth

will become the fallacy of the principle which claims for the Supreme

Court a controlling power over the other departments in respect to

constitutional questions. Inquirers of this description cannot fail to

appreciate the difficulty, nay the impossibility of reconciling Mr.

Webster's unreserved admission of the President's "undoubted right in

the exercise of his functions, when a bill is presented for his

approval, to consider in all cases whether such a bill be compatible

with the Constitution, and whether he can approve it, consistently with

his oath of office," and to approve, or refuse to approve according to

the result, with his severe denunciation of him for regarding an act as

unconstitutional, which had been approved by one of his predecessors,

but which he, notwithstanding, conscientiously believed to be

unconstitutional, and for withholding the power of the executive from

the execution of any such act. Everybody knows that an act which is

contrary to the Constitution is a nullity, although it may have passed

according to the forms of the Constitution. That instrument creates

several departments, whose duty it may become to act upon such a bill,

in the performance of their respective functions. The theory of the

Constitution is that these departments are coördinate and independent of

each other, and that when they act in their appropriate spheres they

each have a right, and it is the duty of each to judge for themselves in

respect to the authority and requirements of the Constitution, without

being controlled or interfered with by their co-departments, and are

each responsible to the people alone who made them for the manner in

which they discharge their respective duties in that regard. It is not

therefore to be presumed that that instrument, after making it the

President's especial duty to take an oath to preserve and uphold the

Constitution and prevent its violation, intended to deny to him the

right to withhold his assent from a measure which he might

conscientiously believe would have that effect, and to impose upon him

the necessity of outraging his conscience, by making himself a party to

such a violation. The Constitution, which was framed by great men, the

form of which has been so much and so justly admired, is not so

imperfect nor subject to such a reproach. The matter does not

necessarily end with a refusal on the part of the executive to do an act

which he believes Congress had no right, under the Constitution, to

require his department to perform. Although the President, representing

one of the three great departments of the Government, possesses in this

respect a right which neither the citizen nor any other officer or

officers of the Government, not having the control of such a department,

can exercise, yet if he allows himself to be governed by unworthy

motives he is liable to impeachment and expulsion from office. It is in

this way, or by his removal by the people, that the wrong he does to the

public is redressed. But this is not all. If the act has been passed

according to the forms of the Constitution, and is judged to be

constitutional by the judicial department of the Federal Government, it

is obligatory upon the citizens, binds and controls their private rights

and personal interests, and can be carried into effect in respect to

those by the judiciary, which also judges for itself regarding the

constitutionality of such law. It is the department by which laws,

affecting as well the private rights of the citizen as those of the

States, which can be made the subjects of litigation, are carried into

effect. It has ample power conferred upon it to cause its judgments and

decrees to be executed. Officers are appointed whose duty it is made by

law to obey its orders, and these officers have the right given to call

out the civil power of their respective districts to enable them to

execute judicial decrees. Nor do the rights secured to it by the

Constitution stop here. If resistance is offered to the execution of a

judgment or decree--made by the proper court to which jurisdiction of

the matter which such judgment or decree seeks to enforce is given by

the Constitution--too great to be overcome by the civil power, it is the

duty of the President, upon the request of the officers of the court, to

order out the military power to sustain that of the judiciary. It would

be no answer on his part to such a call to say that the right which the

decree or judgment seeks to enforce arises under a law which he deems

unconstitutional. That is, under the circumstances, a matter that he has

no right to inquire into. The decision of that question has been

delegated to a different department, and has by that department been

decided differently. The Constitution requires that the judgments of

that department, upon subjects committed to it, should be enforced. It

makes that enforcement, in extreme cases, the duty of the military. The

President is intrusted with the command of that force and, in such a

case, his power in regard to it is ministerial only. It is his duty, in

such a case, to sustain the judicial power by the aid of the military,

and if he failed in its performance he would subject himself to

impeachment and removal from office. Not only is the entire power of the

government thus pledged to the maintenance of judicial authority, whilst

acting in the line of its duties, but there lies no appeal from its

judgments or decrees. They are final and obligatory upon the rights and

interests of the parties. They can neither be reversed by any other

tribunal, nor is it in the power of the remaining departments of the

Government united to set them aside or to treat them as a nullity,

however contrary to the Constitution they may be.

We are not without experience upon this point. Our history bears

indelible record of the abuse of power in that form during the

administration of the elder Adams. The unconstitutionality of the

Sedition Law will now be scarcely controverted by any ingenuous mind.

The Supreme Court, nevertheless, decided it to be constitutional, tried

citizens for having violated its provisions, and caused fines and

imprisonment to be inflicted upon them. When a majority of the Senate of

the United States, friends of the bank, placed upon its journal an

unconstitutional act of condemnation against President Jackson, for the

steps he had taken to relieve the country from that institution, the

same body, after its political complexion had been sufficiently changed

through the influence of an offended public sentiment, not only reversed

the sentence but expunged it from the record. This it had a right to do,

because both acts were committed by the same branch of the same

department. But the executive and legislative departments had no such

power over the unconstitutional sentences that were pronounced under the

Sedition Law, because they had no right to interfere with the acts of a

coördinate department. The President had an express right to pardon such

offenses, and the national legislature had a constitutional right to

return the money collected from those who committed them, and they did

so. But the judgments of the court remained, and will forever remain,

unreversed. In England, judicial convictions, attainders, judgments of

forfeitures of franchises, etc., may be reversed by act of Parliament,

but no such interference by one department of the government with the

authorized proceedings of a coördinate department are permitted by our

Constitution, simply because the great departments of our Government are

by the Constitution made coördinate and independent of each other. Can

any reflecting mind, in view of these facts, doubt the sufficiency of

the protection which that instrument provides for the personal rights of

the citizen and for private interests of every description, or for a

moment apprehend the disorganization of society described by Mr. Webster

as a consequence of carrying into effect the principles avowed by

President Jackson?

The judicial power of the Federal Government, according to the

description here given of the binding force, the finality and efficiency

of its decisions upon the parties and their rights in all cases which

may be brought before it, answers all the purposes of its institution.

Was it the intention of the framers of the Constitution that it should

be clothed with other powers, and if so, what are they? The duties

imposed on the executive and legislative departments are of higher

importance than those of the judiciary, in proportion as the interests

of the nation are of more consequence than the separate interests of

individuals and minor associations. They include the question of peace

or of war, and the maintenance of the latter, international obligations

in the forms of treaties, their construction and execution, the

regulation of foreign commerce and commerce among the States, the

regulation of the currency, the establishment of a mint, the assessment

and collection of the national revenue, the raising, regulating, and

command of an army and navy, the establishment of a general and of

particular post-offices, the regulation and protection of the Indian

tribes, and many other duties which it is unnecessary to specify. In

none of these is it contemplated by the Constitution that the judicial

power shall take a part. The powers and duties of the other departments

upon these subjects are to some extent specified in the Constitution,

and the residue are left to the direction of the legislature which acts,

in respect to them, through the Executive as the department especially

charged with the execution of the laws. In the performance of their high

duties these departments are, at almost every step, met by

constitutional questions. The Houses of the legislature, in every law or

resolution that they pass, have to consider whether it is authorized by

the Constitution to which they have sworn to conform, and the President

and Senate, when they make a treaty, are bound to consider and decide

the same question. The President, as the sole depositary of the

executive power, is under a similar obligation. His first inquiry is,

whether the Constitution authorizes him to apply the power of his

department to the execution of the business before him, or, if it is one

of the numerous functions which the legislature is in the constant

habit of calling upon him to perform, has the legislature power under

the Constitution to direct the thing to be done, and can he do it

consistently with his oath to preserve and uphold that instrument?

How are they to act in the decision of these questions? By what

considerations are they to be controlled? They know that they are

responsible to the people, under whose commission they act, for all they

do. The Constitution does not give to one department the right to decide

such questions for another, either in terms or by necessary implication,

nor subject them to any other responsibility, nor place before them any

guide for the government of their decisions other than their own

discretion and their own consciences, and has caused to be placed upon

their consciences an oath that they will, in no event, act contrary to

that instrument. Under such circumstances, I ask, what are they to do?

What can they do, consistently with the duty they owe to God, to their

country, and to themselves, other than to decide such questions for

themselves, following the dictates of their own judgment? Can it be

believed that those who framed and adopted the Constitution intended to

place these high functionaries,--the only representatives of the people,

in the great departments of the government, over whose continuance in

office the people possess control--to place them, in respect to their

official acts, about which a constitutional question can be raised,

under the guidance of a department over which the people possess no such

control, to be regulated by its decisions in private actions, to which

such functionaries are not parties, and of which decisions they are,

notwithstanding, to take notice at their peril. If a system so

anti-republican could have been designed by those who made the

Constitution, is it to be supposed that they would have omitted to

declare, on the face of the instrument, that such was their intention,

leaving those functionaries to grope their way to its discovery. Such a

question--one in which the character of our political institutions is so

much involved, and upon a right understanding of which their ultimate

safety may depend--should be stripped of every uncertainty. The claim

set up for the Supreme Court must be good throughout, or it is not good

at all. The principle, that the final decision of constitutional

questions belongs exclusively to the supreme judicial tribunal, set up

in Mr. Webster's speech, must be true throughout, or it cannot be true

to any extent. It amounts to this: the incumbents of the legislative and

executive departments, in respect to questions of constitutional power,

are _ministerial officers only_. Constitutional questions are points in

respect to which they have no right to exercise their own discretion,

but are bound, at every important step, to look to the judiciary for

guidance, and if they omit to adopt its decisions, if it has made any,

they do so at their peril:--the former department at the hazard of

having its laws, if the Supreme Court regard them as unconstitutional,

treated as a nullity, not only when they are relied upon "in cases in

law and equity," but in all cases, and everywhere. From the nature of

their action, members of Congress do not subject themselves to personal

responsibility, except when they act corruptly. But the situation of the

incumbent of the executive department is less favorable. Deprived of all

discretion, and bound to thus understand his position, he encounters

personal responsibility, in certain cases, whichever way he may act. If

he find a law upon the statute book, approved by one of his

predecessors--and to relieve the country from which has perhaps been one

of the reasons for the removal of the latter from office--a law which he

deems unauthorized by the Constitution, but which the Supreme Court

holds to be constitutional, he must either violate his oath of office

and execute it, or refuse to do so and expose himself to impeachment

for a failure in the discharge of his official duties. If he persists in

the observance of a law which the Supreme Court has, in a private suit,

held to be unconstitutional, he incurs a similar responsibility; and if

he omits its observance, he does violence to his own conscience by

failing to perform his official duties according to his oath. Let me

illustrate this view of the subject by particular and possible cases.

Take that referred to by General Hamilton in his papers written in

defense of President Washington's proclamation of neutrality, over the

signature of "Pacificus."

The President has power, by and with the advice of the Senate, to make

treaties with foreign governments. Private rights, subject to judicial

investigation, often grow out of public treaties. The interpretation and

enforcement of these rights belong exclusively to the judiciary, and in

the execution of its power it may hold the treaty, under which the claim

arises, unconstitutional for any of the reasons for which laws may be so

regarded. Its decision is binding and final upon the parties and their

interests.

Then comes the execution of that treaty between the governments that are

parties to it. This, on our part, belongs exclusively to the legislative

and executive departments. The duty of the former is to pass the laws

necessary to its execution, and that of the latter to see to their

enforcement, and to do such other acts as he may do, under the

Constitution, without a law.

A foreign government calls for the interference of these departments to

redeem the national faith, pledged through executive instrumentality,

and for the redemption of which the executive, and the legislature,

where necessary, are the agents designated by the Constitution. They see

and feel their duty, but have been rendered powerless. The Supreme Court

has decided the treaty to be unconstitutional. No matter how obscure

the parties by whom its interference was asked, no matter how

unimportant the interest in respect to which the decision was made, from

the moment it is promulgated, it becomes a rule of action for every

department of the government, and every public functionary as well as

every citizen. If the national legislature passes a law to carry into

effect the void treaty its law becomes a nullity. If the executive

issues an order for its execution, or toward the performance of the

treaty in any way to his subordinates, they are not bound to obey it,

and the Supreme Court will sustain them in their contumacy. If he take

measures to enforce his authority, he makes himself amenable to that

tribunal. Acting in such a matter as a ministerial officer only, without

a right to employ his own discretion, he subjects himself to impeachment

if he persists.

Alexander Hamilton--who, if he was not the one who suggested the

latitudinarian doctrine of "implied powers," was certainly its most

effective supporter, and through life its watchful guardian--in No. 1 of

Pacificus, has said that though the judiciary department is charged with

the interpretation of treaties, "it exercises this function only where

contending parties bring before it a specific controversy;" that "it has

no concern with pronouncing upon the external political relation of

treaties between government and government;" that "this proposition is

too plain to need being insisted upon;" that "it belongs to the

executive department to exercise the function in question, when a proper

case for it occurs," "as the _interpreter_ of the national treaties, in

those cases in which the judiciary is not competent,--that is, between

government and government; as the _power_ which is charged with the

execution of the laws, of which treaties form a part; as that which is

charged with the command and disposition of the public force."

James Madison, in conjunction with Hamilton and Jay, in the numbers of

the "Federalist," avows doctrines at war with this assumption of power

in the Supreme Court. Thomas Jefferson, whose anxious patriotism was

always alive to such subjects, and the political thoughts and studies of

whose life were exclusively directed toward the protection of human

rights through the instrumentality of free governments, opposed the

doctrine vehemently, from first to last, and long after his retirement

from public life, its passions and excitements, expressed himself in

regard to it, on different occasions, in terms which follow. In 1815, in

answer to the direct question put to him by a citizen of Georgia, he

says:--"The second question, whether the judges are invested with

exclusive authority to decide on the constitutionality of a law, has

been heretofore a subject of consideration with me in the exercise of

official duties. Certainly there is not a word in the Constitution which

has given that power to them more than to the executive or legislative

branches. Questions of property, of character, and of crime, being

ascribed to the judges, through a definite course of legal

proceeding,--laws, involving such questions, belong, of course, to them,

and as they decide on them ultimately and without appeal, they, of

course, decide _for themselves_. The constitutional validity of the law,

or laws, again prescribing executive action, and to be administered by

that branch ultimately and without appeal, the executive must decide for

_themselves_, also, whether, under the Constitution, they are valid or

not. So, also, as to laws governing the proceedings of the legislature;

that body must judge _for itself_ the constitutionality of the law, and,

equally, without appeal or control from its coördinate branches. And, in

general, that branch which is to act ultimately, and without appeal, on

any law, is the rightful expositor of the validity of the law,

uncontrolled by the opinions of the other coördinate authorities."

Again, so late as 1819, in a very interesting letter to Judge Spencer

Roane, he says:--"My construction of the Constitution is very different

from that you quote. It is that each department is truly independent of

the others, and has an equal right to decide for itself what is the

meaning of the Constitution in the cases submitted to its action; and

especially, where it is to act ultimately and without appeal.... But you

intimate a wish that my opinion should be known on this subject. No,

dear Sir, I withdraw from all contests of opinion and resign every thing

cheerfully to the generation now in place. They are wiser than we were,

and their successors will be wiser than they, from the progressive

advance of science. Tranquillity is the _summum bonum_ of age. I wish,

therefore, to offend no man's opinion, nor to draw disquieting

animadversions on my own. While duty required it, I met opposition with

a firm and fearless step. But loving mankind in my individual relations

with them, I pray to be permitted to depart in their peace, and, like

the superannuated soldier, '_quadragenis stipendiis emeritis_,' to hang

my arms on the post."

Mr. Jefferson, in these letters, speaks of his uniform opposition to the

opposite doctrine, and refers to the inconvenience that may at times

arise from conflicting decisions. But that, he thought, might be safely

dealt with through the prudence of public functionaries, and he names

instances when they were so treated: one in England, where an instance

of difference occurred, in the time of Lord Holt, between the judges of

England and the House of Commons; and another in this country, when a

difference of opinion was found to exist between the Federal Judiciary

and the House of Representatives. The Supreme Court decided, in a case

of _meum and tuum_, that William Duane was not a citizen, and the

House of Representatives, upon a question of membership, decided that

William Smith, whose character of citizenship stood on precisely the

same ground, was a citizen. These decisions were made in high party

times, whilst the Federalists were in power. Duane was an Irishman, who

had married into the family of Dr. Franklin, and was editor of the

"Aurora," the most prominent Republican newspaper. Smith was an ardent

Federalist from South Carolina, a man of good talents himself, but who

delivered speeches in the House prepared by Hamilton in his closet, as

was charged by Jefferson at the time, and has now been fully proved by

the publication of Hamilton's private papers.

But the establishment of the constitutional rule sustained by Jefferson

would not have saved the country from practical inconveniences, which he

did not notice because he knew them to be unavoidable. A concession to

the other great departments of the right to decide for themselves

constitutional questions applicable to, and that necessarily arise in

the discharge of, their official functions, still leaves them, to a

serious extent, dependent upon the judicial power. Whilst it would

exempt the incumbents from the penalty of impeachment when they act in

good faith, they and their subordinates remain liable whenever their

acts may be construed into an injurious interference with the property

or personal rights of individuals, to be called before the judicial

tribunal, to be there subjected to a different interpretation of the

Constitution from that which they, or their superiors in authority, have

placed upon it, and to be melted in damages for their public acts,

however pure their motives may have been.

In a government, constructed like ours in some degree of conflicting

parts, it is ever difficult, if not at times impossible, to prevent such

a discrepancy, and those who framed ours, upon the whole, were wise in

not attempting to do so. As a tribute to the personal rights of man and

the security of private property, existing provisions go far to atone

for whatever of individual injustice they may occasion. The legislative

department has the power to indemnify those who suffer in this way and

invariably does so when they have acted in good faith. The losses thus

incurred by individuals, in the first instance, are in the end

transferred to the whole community, which is abundantly remunerated by

the benefits it derives from the system as a whole. Should a federal

organization ever obtain which shall attempt, through an abuse of its

power, to exert a dangerous influence over the Government, to an extent

and in a way to arrest the attention of the people, they will neither be

at a loss for a remedy nor fail in its adoption.

But to extend the control of the judiciary, through their decisions "in

cases in law and equity," over the action of the other departments in

the discharge of the duties assigned to them, for the extent and gravity

of which we have only to look to the Constitution, and which, for the

most part, steer entirely clear of private and separate interests, would

be a measure of a very different character. It was upon these public

functionaries that the entire political power of the Federal Government

was intended to be conferred, and to the limited tenure by which they

held their offices and to their direct responsibility to the people that

the latter have always looked for the means to control their action. It

is upon this swift and certain responsibility they have hitherto relied

for their ability to bring the government back, without great delay, to

the republican track designed for it by the Constitution, whenever it

might be made to depart from it through, the infidelity of their

representatives. Truly says Mr. Jefferson, in one of his letters last

referred to, "when the legislative or executive functionaries act

unconstitutionally, they are responsible to the people in their elective

capacity. The exemption of the judges from that is quite dangerous

enough. I know no safe depository of the ultimate powers of the society

but the people themselves; and if we think them not enlightened enough

to exercise their control with a wholesome discretion, the remedy is not

to take it from them, but to inform their discretion by education. This

is the true corrective of abuses of constitutional power."

Nor have the people been slow to exert their powers to reform abuses

which they honestly, whether erroneously or not, believed to exist, by

displacing representatives whom they considered unfaithful, whenever the

occasion has seemed to them of sufficient magnitude to call for its

exercise. The commencement of the nineteenth century was made forever

memorable in our political annals by a display of this power, and it was

again exerted in 1828, in 1840, in 1844, and in 1852. The result of the

election of 1848 was altogether occasioned by divisions in the

Democratic party, and I feel that I venture nothing in attributing that

of 1840 mainly to a mistake in the public mind, which it has since

magnanimously acknowledged, and with that atonement I am more than

satisfied.

But if the incumbents of the legislative and executive departments have

no right to decide for themselves constitutional questions that arise in

the performance of their official functions; if it be indeed true that

the National Legislature, in discharging the important duties of laying

and collecting taxes, duties, imposts, and excises; in borrowing money

on the credit of the United States; in regulating commerce with foreign

nations, and among the several States, and with the Indian tribes; in

establishing uniform rules of naturalization and on the subject of

bankruptcies; in coining money and regulating the value thereof, and of

foreign coins, and fixing the standard of weights and measures; in

providing punishment for counterfeiting the securities and current coin

of the United States; in establishing post-offices and post-roads; in

promoting science and useful arts; in constituting tribunals inferior to

the Supreme Court; in defining and punishing piracies and felonies

committed on the high seas and offences against the law of nations; in

declaring war; granting letters of marque and reprisal, and making rules

concerning captures on land and water; in raising and supporting armies;

in providing and maintaining a navy; in making rules for the government

and regulation of the land and naval forces; in providing for calling

forth the militia to execute the laws of the Union, suppress

insurrection and repel invasion; in providing for organizing armies and

disciplining the militia, and for governing such parts of them as may be

employed in the service of the United States; in the exercise of

exclusive jurisdiction in all cases whatsoever in the ten-mile-square

and in the forts of the United States; and in making necessary and

proper laws for carrying into execution the foregoing powers and all

other powers vested by the Constitution in the Government of the United

States, or in _any department_ or officer thereof: and that the

President, in assuming command of the army or navy of the United States

and of the militia of the several States, when called into their

service; in making treaties by and with the advice of the Senate; and in

the appointment of all the officers of the United States, with limited

and specific exceptions, and in filling up all vacancies that may arise

during the recess of the Senate; in receiving ambassadors and other

public ministers; and in taking care that the laws be faithfully

executed,--are both bound to look to the decisions, of the Supreme

Court, "in cases of law and equity" that are brought before them, for

the character and extent of their powers under the Constitution, and to

be governed by them, what becomes of the distinguishing feature of

Republican Government--the responsibility of the representative to the

people for the faithful performance of his duties? A people so

intelligent, and withal so just as ours, would surely never think of

dismissing one branch of their public servants for acts in respect to

which they had placed them under the absolute guidance of another

branch. To single out one department from the rest by placing its

incumbent under a special oath to protect and preserve the Constitution,

and then to make it his duty to obey the directions of another in that

very function, absolutely and unconditionally, would, I cannot but

think, be going quite as far in that direction as the character of any

people for justice and wisdom could bear.

To whom are the members of the Federal Judiciary responsible for the

truthfulness of their constitutional expositions and for the wisdom of

the steps they take to make them effectual? To no human being. They can

only be displaced by impeachment and criminal conviction. That mere

error of judgment, without positive proof of corruption, can never be

made the basis of such a proceeding, is known to all. Is it not, then,

most apparent that to place the fidelity to the Federal Constitution of

the representatives of the people and of the States and of most of the

effective officers employed in the conduct of public affairs, save only

those that are of a judicial character, under the supervision of that

department, is nothing less than to divest the Government of its

republican features and to substitute in its place the control of an

irresponsible judicial oligarchy--to make the Constitution a lie, and

turn to mockery its most formal provisions, designed to secure to the

people a control over the action of the Government under its authority?

Is it not remarkable that a doctrine, so clearly anti-republican in its

character and tendencies, should have been so long kept on foot under a

system so truly republican as ours, and may we not trace its origin to

the same inexhaustible fountain from whence have proceeded the most

tenacious of our party divisions--an inextinguishable distrust, on the

part of numerous and powerful classes, of the capacities and

dispositions of the great body of their fellow-citizens?

The want of a proper respect for the people, as has been often said, was

Hamilton's great misfortune. If he could have felt otherwise, he would

have been a Republican. This distrust of the capacity and disposition of

the masses, which had been the bane of his life, retained its hold upon

his strong mind and ardent feelings when he bequeathed it to his

political disciples, and it has been the shibboleth of their tribe ever

since. In a large degree wealthy and proud of their social position,

their fear of the popular will, and desire to escape from popular

control, instead of being lessened, is increased by the advance of the

people in education and knowledge. Under no authority do they feel their

interests to be safer than under that which is subject to the judicial

power, and in no way could their policy be more effectually promoted

than by taking power from those departments of the Government over which

the people have full control, and accumulating it in that over which

they may fairly be said to have none.