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The same learned judge in a subsequent case, when he also delivered the opinion of the Supreme Court, most correctly drew from the constitution itself, certain principles necessary to support the asserted jurisdiction of a legislative body to punish contempts against itself, which he justly observes involves the interest of the people.

“ The interests and dignity of those who created “the public functionaries, require the exertion of the “powers indispensable to the attainment of the ends " of their creation." (139)

The question before the court was only on the jurisdiction of the house. The precise nature of the offence committed did not appear on the face of the pleadings. It was observed by him, “ that we are not to de

cide that this jurisdiction does not exist, because it is “not expressly given. It is true, that such a power, if “ it exists, must be derived from implication, and the “genius and spirit of our institutions are hostile to the “ exercise of implied powers. Had the faculties of man 66 been competent to the framing of a system in which “nothing would have been left to implication, the effort “would undoubtedly have been made. But in the whole 66 of our admirable constitution, there is not a grant of 6 powers, which does not draw after it others not ex“pressed, but vital to their exercise, not substantive an “independent, bat auxiliary and subordinate."

Now we may be permitted to remark, that the jurisdiction thus raised and supported by necessary implication, could in this case, have operated only on those acts, which, by an implication equally necessary, were to be considered as offences. No act of congress has declared what shall constitute those offences. They

(139) 6 Wheaton, 204. Anderson v. Dunn.

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must therefore essentially be, what are termed contempts, or breaches of privilege at common law. It was competènt for the Supreme Court, (was it not incumbent on them?) to notice that the non-existence of any legislative provisions on the subject, rendered it impossible to justify an imprisonment by virtue of the speaker's warrant for a non-existing offence. But the observation is, that " the power to institute a prosecu5 tion must be dependent on the power to punish. If 66. the house of representatives possessed no power to “punish for contempt, the initiatory process issued “ in the operation of that authority, must have been “illegal; there was a want of jurisdiction to justify it." And the omission to take this ground, seems to support the argument excluding the necessity of a statutory provision.

On the same ground we may advert to the exercise of the power of impeachment. In neither of the cases already mentioned, (140) were the acts charged to the parties accused, statutory offences. Yet the doctrine opposed in this work, would render the power of impeachment a nullity, in all cases except the two expressly mentioned, treason and bribery; until congress pass laws, declaring what shall constitute the other “high crimes and misdemeanors."

And thus the question seems to be at rest in the contemplation of both these courts, for such they must be termed, when acting in those capacities, and both of them are courts from whose decision there is no appeal.

(140) See p. 204.


Of checks and restraints on the judicial branch.

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FROM these general views of the judicial power, we collect that it is in the nature of a principle incorporated for useful purposes into the constitution, vested in various agents, some of whom derive their authority from the United States, and some from the states, and bolding their offices, as will appear by reference to those constitutions, on various tenures, but all possess

. ing the right of deciding on the validity of a law.

If this power is in itself inordinate, if it is not consistent with the true interests of the people, it might have been excluded from, or carefully qualified in, the constitution; but it has been established by the people on full deliberation, and a few additional reflections on its nature and utility may be admitted.

In the first place we may observe, that a judicial power with such extensive attributes, is probably pecu• liar to this country. Where there is not a fixed and

settled constitution, whether written or unwritten, which cannot be altered by the legislature, the judiciary has no power to declare a law unconstitutional. In such countries, the people are at the mercy of the legislature. The appeals which they may make to their constitutions are disregarded if they cannot be enforced, and the constitution possesses merely a nominal value. It tends indeed to excite discontents, by exhibiting rights that cannot be enjoyed, and promising restraints on government, that may be broken with im. punity.

The constitution of the United States was not framed, in this respect, on ground new to us. The principle had been previously inserted in all the state constitutions then formed. It has been preserved in all those since established, and none of the alterations which we have heretofore noticed, (p. 12,) have been extended to this point.

We may then inquire, in what mode or form of language it could have been excluded from the constitution, and what would have been the effect of such exclusion. Being in itself a necessary incident to a regular and complete government, its existence is implied from the mere fact of creating such a government;

if it is intended that it should not be commensurate with all the powers and obligations of the government, or that it should not form any part of it whatever, express terms of exclusion would certainly be required.

Now it would be difficult to reconcile the minds of freemen, to whom was submitted the consideration of a scheme of government, professing to contain those principles by which a future legislature and executive were to be regulated, to any declarations that a subversion or abandonment of those principles, by either branch, and particularly by the legislature, should be liable to no resistance or control. The judicial power potentially existed before any laws were passed ; it could not be without an object; that object is at first the constitution. As the legislature proceeds to act, the judicial power follows their proceedings. It is a corrective imposed by the constitution on their acts. The legislature are not deceived or misled. Nothing indi: cates that they alone are to decide on the constitutionality of their own acts, or that the people who may be injured by such acts, are unprovided with any other defence than open resistance to them, but without an


adequate power in the judiciary to the effect required, the people would be driven to such resistance, obliged to wait till they could obtain redress through the exercise of their elective powers, or be compelled to patient submission.

But the rights of the people are better secured merely by the general undefined judicial power, necessarily inferred from the general language of the constitution itself, pre-existing in their own state constitutions, never surrendered to the United States. In the last mentioned aspect, it would appear surprising that those who were most apprehensive of the self-increasing power of the general government, did not perceive the bulwark of their safety. The courts and the judges of every state possess, as before observed, the right to decide on the constitutionality of a law of their own state and of the United States. The principle itself, and not the mere tribunal, constitutes the public security. That such decisions are subject to the appellate jurisdiction heretofore spoken of, forms no objection to their value. The object of this jurisdiction is to produce uniformity. Instead of reducing, it enhances the value, while it proves the universal bearing of the principle itself.

In the organization of this power thus salutary, thus necessary, is found the only difficulty. To render it wholly independent of the people is objected to by many: to affect its necessary independence by the modes of creating and appointing its ministers, is liable to equal objections. In the first case, arbitrary and despotic proceedings are apprehended. It is supposed to be the natural disposition of man when placed above control, to abuse his power, or, if no corrupt motives produce this consequence, there sometimes are found a laxity, a carelessness, a want of sufficient exertion and deliberate judgment in the exercise of it. On the other

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