fore the supreme court, may be decided to be unconstitutional, by the turning voice of the least able of all the judges on the bench. It would seem more proper in every case, to presume so far on the prudence and wisdom of congress and the President, as to trust in the first instance, that they would not transcend their authority by enacting an unconstitutional law; and therefore to consider every law as constitutional, until it had been decided to be unconstitutional, by the opinions of two thirds of the judges of the supreme court, notwithstanding the opinions of a majority of their number should be against it. The constitutionality of a law of any of the states, however, has no claim whatever to be treated with the same respect. For, the majority of congress can seldom or never have any particular or partial interest to serve, in the passage of any unconstitutional law, which in its own nature must be of general application. But each state has its own private interest to consult, distinct from that of the rest, and this interest there is good reason to apprehend, may sometimes tempt the state governments to make unconstitutional attempts to enact and enforce laws, by which the rights of others may be injuriously affected. The presumption in favor of the constitutionality of a state law, consequently, must naturally be much weaker, than that of an act of congress. It would seem therefore a very reasonable distinction, to consider every state law, in relation to the federal constitution, as constitutional, so far as it affected persons and property within the state, until it had been decided to be unconstitutional by a majority of the judges of the supreme court of the United States; while a law of the United States should be considered as constitutional, until decided not to be so, by a majority of two thirds of the judges of the same tribunal.

The increase of the States in population and wealth, and consequently in political power, is so rapid, that, in all probability before many years will have elapsed, it will be found necessary to adopt some new measures, in order to give the supreme court more weight and strength, in proportion not only to its respectability, as the highest tribunal of justice in the United States, but as the best and firmest barrier, against any usurpation, or tyrannical abuse of political power. It will

be found expedient to enable this court to enforce its righteous decrees instantly, in cases of oppression, arising from an abuse of power in violation of the constitution. The life, liberty and property of every citizen of the United States should be placed within the protection of this court so effectually, against oppression by an unjust exercise of political power, that after a decree in his favor, neither of them should continue in jeopardy a day longer than may be necessary to give notice of the judgment of the court. In the theory, the beau ideal of the federal government, no doubt this was intended; and, by the laws of the union it would seem, that an insurrection or levying of troops with or without a pretence of political power, for the purpose of resisting the execution of a decree of the supreme court of the United States, must be treasonable. Yet, where there is no other resistance to the decree of this court, than what is implied in a simple act of disobedience to it, the penality of the clause of non omittas, should be of a severity proportioned to the importance of the case. For, what can be a greater disgrace to the government of the Union, than to have the decrees of its highest tribunal openly contemned and disregarded?

To relieve the judges of this tribunal, of part of the great responsibility, which is placed upon them; to preserve this court as incorruptible, impartial and independent, as it always has been; to protect it from the obloquy, which upright decisions always occasion in the unjust and unprincipled; some such measures as the two following would seem to be advisable to be adopted before many years. 1. To increase the number of judges as high as twelve, at least. 2. To establish a seniority among the states, so that, as vacancies hereafter arise on the bench, each state in its turn may have the appointment of one of the judges of the supreme court. The appointment might be entrusted to the Governor by and with the consent of the senate of each state. It would be found expedient, also that the Union should be classed under four divisions of six states each; and it would be sound policy for the prevention of jealousies, to take care that two judges should never be taken from the same division in succession. This would prevent any predominance in the supreme court, of

the North over the South, or of the East over the West, and vice versa.

In general the policy of having one department of the general government, depend upon another co-ordinate department, for the appointment of its officers, seems liable to exception, if it is intended to be, as it ought to be, perfectly independent. For the same reason, they ought not to be liable to be removed by an address of both houses. For, while they are exposed to this danger, if any political question should be brought before them, in which the dominant political party in congress for the time being, has any strong interest or bias, the judges will be liable to lose their offices, if their views of justice do not coincide with the feelings of a majority of congress. For the same reasons, they ought not to be under any obligations to the President for their nomination. All such relations are supposed to have a tendency to diminish the independence of a judge, and consequently his impartiality, in cases where the President's views, feelings or interests are concerned in any case brought before the court; and though such suspicions, it is believed, are almost invariably groundless, yet a judge ought not to be placed in a situation, where he may feel an inducement ungratefully to decide against one to whom he is under obligations and whom he believes to be in the right, or otherwise be exposed to the calumny and obloquy of the illiberal, as if he had sacrificed justice to partiality.

The supreme court of the United States is the firmest stay and support of the Union. Being the least swayed by party considerations, it is the most upright, and consequently, in a literal as well as figurative sense, it is the most firm and stable. Having its foundation in principle, and not in faction, ambition, love of popular applause or selfish interests, it is the most to be relied on of all the departments of government. Every thing possible therefore should be done to support its dignity and independence. For, while this department of the general government is kept spotless and incorruptible, and while it has power to enforce its decrees; though intrigue and corruption should taint every other part of the government, the union of the states, and the constitutional or political rights of each individual citizen, will still remain unviolable.

5. This Chapter it is believed cannot be better terminated, than by the quotation of the following passages in the opinion of Ch. Jus. Jay, in the case of Chisholm v. Georgia.

'Prior to the date of the constitution, the people had not any national tribunal, to which they could resort for justice. The distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens, and that even in cases, where state considerations were not always favorable to the most exact measure. There was danger, that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and policy.

Prior also to that period, the United states had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest, as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state relative to the laws of nations, and the performance of treaties, and there the inexpediency of referring all such questions to state Courts, and particularly to the courts of delinquent states, became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but, in a stable, sedate, and regular course of judicial procedure.

These were among the evils against which it was proper for the nation, that is the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the constitution. The people therein declare that their design in establishing it, comprehended six objects. First, To form a more perfect union. Second, To establish justice. Third, To insure domestic tranquillity. Fourth, To provide for the common defence. Fifth, To promote the general welfare. Sixth, To secure the blessings of liberty to themselves and their posterity.' ***

It may be asked, what is the precise sense and latitude, in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the constitution, on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. First, To all cases arising under this constitution; because the meaning, construction, and operation of a compact, ought always to be ascertained by all the parties, or by authority derived only from one of them. Second, To all cases arising under the laws of the United States; because, as such laws constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party, from whom they are due, but by a tribunal deriving authority from both the parties. Third, To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation. Fourth, To all cases affecting ambassadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. Fifth, To all cases of admiralty and maritime jurisdiction, because as the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. Sixth, To controversies to which the United States shall be a party; because, in cases in which the whole people are interested, it would not be equal or wise, to let any one state decide and measure out the justice due to others. Seventh, To con