defiance of all the obligations derived from a course of precedents, amounting to the requisite evidence of the national judgment and intention.

"It has been contended that the authority of precedents was in that case invalidated, by the consideration, that they proved only a respect for the stipulated duration of the bank, with a toleration of it, until the law should expire, and by the casting vote given in the senate by the Vice-President, in 1811, against a bill for establishing a National Bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated. And as to the negative of the senate, by the casting vote of the presiding officer; it is a fact well understood at the time, that it resulted not from an equality of opinions in that assembly, on the power of congress to establish a bank, but from a junction of those, who admitted the power, but disapproved the plan, with those who denied the power. On a simple question of constitutionality, there was a decided majority in favour of it."

There is also a very cogent argument, on the same side, in Mr. Webster's Speech in the senate, in July, 1832, on the Veto Message of the President.

CHAPTER XXXVIII.

JUDICIARY ORGANIZATION AND POWERS.

§ 1567. THE order of the subject next conducts us to the consideration of the third article of the constitution, which embraces the organization and powers of the judicial department.

§ 1568. The importance of the establishment of a judicial department in the national government has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the confederation.1 And every government must, in its essence, be unsafe and unfit for a free people, where such a department does not exist, with powers co-extensive with those of the legislative department. Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty. The will

1 The Federalist, No. 22; Cohens v. Virginia, 6 Wheat. R. 388; 1 Kent's Comm. Lect. 14, p. 277.

2 The Federalist, No. 80; 1 Kent's Comm. Lect. 14, p. 277; Cohens v. Virginia, 6 Wheat. R. 384; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Deb. 143; Osborne v. Bank of United States, 9 Wheat. R. 818, 819. — Mr. Justice Wilson has traced out, with much minuteness of detail, the nature and character of the judicial department in ancient, as well as modern nations, and especially in England; and a perusal of his remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3, p. 201, &c.

3 1 Kent's Comm. Lect. 14, p. 277.- It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will in any case. Judicial power, as contradistinguished from the power of

1

of those, who govern, will become, under such circumstances, absolute and despotic; and it is wholly immaterial, whether power is vested in a single tyrant, or in an assembly of tyrants. No remark is better founded in human experience, than that of Montesquieu, that "there is no liberty, if the judiciary power be not separated from the legislative and executive powers." And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice. If that government can be truly said to be despotic and intolerable, in which the law is vague and uncertain; it cannot but be rendered still more oppressive and more mischievous, when the actual administration of justice is dependent upon caprice, or favour, upon the will of rulers, or the influence of popularity. When power becomes right, it is of little consequence, whether decisions rest upon corruption, or weakness, upon the accidents of chance, or upon deliberate wrong. In every well organized government, therefore, with reference to the security both of public rights and private rights, it is indispensable, that there should be a judicial department to ascertain, and decide rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.3

the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law."*

1 Montesquieu's Spirit of Laws, B. 11, ch. 6.

2 1 Kent's Comm. Lect. 14, p. 273.

3 Rawle on Constitution, ch. 21, p. 199.

* Osborne v. Bank of United States, 9 Wheat. R. 866.

2

1569. In the national government the power is equally as important, as in the state governments. The laws and treaties, and even the constitution, of the United States, would become a dead letter without it. Indeed, in a complicated government, like ours, where there is an assemblage of republics, combined under a common head, the necessity of some controlling judicial power, to ascertain and enforce the powers of the Union, is, if possible, still more striking. The laws of the whole would otherwise be in continual danger of being contravened by the laws of the parts. The national government would be reduced to a servile dependence upon the states; and the same scenes would be again acted over in solemn mockery, which began in the neglect, and ended in the ruin, of the confederation.3, Power, without adequate means to enforce it, is like a body in a state of suspended animation. For all practical purposes it is, as if its faculties were extinguished. Even if there were no danger of collision between the laws and powers of the Union, and those of the states, it is utterly impossible, that, without some superintending judiciary establishment, there could be any uniform administration, or interpretation of them. The idea of uniformity of decision by thirteen independent and co-ordinate tribunals (and the number is now advanced to twenty-four) is absolutely visionary, if not absurd. The consequence would necessarily be, that neither the constitution, nor the laws, neither the rights and powers of the Union, nor those of the states, would be the same in any two states. And there would be per

1 The Federalist, No. 22; Chisholm v. Georgia, 2 Dall. 419, 474 ; ante, Vol. 1. p. 246, 247; 3 Elliot's Deb. 142.

2 See Cokens v. Virginia, 6 Wheat. R. 384 to 390; Id. 402 to 404, 415; Osborne v. Bank of United States, 9 Wheat. R. 818, 819; ante, Vol. 1. § 266, 267.

petual fluctuations and changes, growing out of the diversity of judgment, as well as of local institutions, interests, and habits of thought.'

§ 1570. Two ends, then, of paramount importance, and fundamental to a free government, are proposed to be attained by the establishment of a national judiciary. The first is a due execution of the powers of the government; and the second is a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them. The power of interpreting the laws involves necessarily the function to ascertain, whether they are conformable to the constitution, or not; and if not so conformable, to declare them void and inoperative. As the constitution is the supreme law of the land, in a conflict between that and the laws, either of congress, or of the states, it becomes the duty of the judiciary to follow that only, which is of paramount obligation. This results from the very theory of a republican constitution of government; for otherwise the acts of the legislature and executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the constitution; and usurpations of the most unequivocal and dangerous character might be assumed, without any remedy within the reach of the citizens.2 The people would thus be at the mercy of their rulers,

1 Martin v. Hunter, 1 Wheat. R. 304, 345 to 349; The Federalist, No. 22.

2 The Federalist, No. 78, 80, 81, 82; 1 Tuck. Black. Comm. App. 355 to 360; 3 Elliot's Deb. 134. This subject is very elaborately discussed in the Federalist, No. 78, from which the following extract is made:

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one, which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no