Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

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.

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 fur 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.

FOOTNOTES:

[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.

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