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in their individual capacities to the government which they have established in their aggregate capacity.

This reasoning applies as well to the several states under the general government, as to the people under a government of a more simple form ; for let each state be considered as a party to the compact establishing the constitution, each was, undeniably, made a party by the sovereign act of the people of the state, the government of which is the creature of that people, and binding as their act only. If then the people as the several states, by themselves, or through the agency of their several governments, by concurrent act have instituted another and general government, that government is the creature of the whole, as the government of each state is the creature of its separate and distinct people ; and each people have the power over the creature they have made, and the right to place it in such relation to the creature made by the whole, as they please, and in such degree of subordination as they may conceive to be most conducive to their interest, and to the common interest of the whole. Indeed, if we reject this reasoning, we must of necessity resort to the exploded doctrine of the divine right of sovereignty. Nothing short of that can establish the authority of any government.

Thus from every view we are able to take of the subject, it conclusively follows that the relation established by the constitution of the United States between the general or national government and the state governments, is a subordination of the latter to the former; but a subordination quoad hoc only, within the limits of the powers delegated to that government, and to the end for which they were delegated. Could I find a term in our language less offensive to state pride, than the word subordination, thus qualified, to express the relation in which the constitution has placed the states in respect to the general government, I would readily adopt it; but I can find no other word that will so correctly express that relation, and I conceive it a matter of the first consequence that we should form a correct opinion upon that subject.


On the Relations established between the three departments of the General


In the preceding chapter we have treated of the relation established between the general government and the several states; in the present chapter, we shall treat of the relations established between the several departments of the general government, the legislative, executive, and judicial.

The reasons for this division and distribution of powers are so obvious that they hardly need be repeated. To vest all the powers of government,--the power of making, the power of executing, and the power of interpreting and applying the laws,-a power of final decision between the people and the government, in a single man, or body of men, is to constitute an absolute despotism, subject to no restraint but that of brute force. To prevent so enormous an evil, the government has, under our institutions, been divided into three separate and distinct departments; the legislative, the executive, and the judicial, and to each is allotted a portion of the power of government, suited to their several functions. The legislative branch to make all laws; the executive, to give them effect in execution ; and the judiciary to interpret and apply the laws, of which the constitution is the supreme law binding on the government, and on each of the departments, by which the validity of every act, legislative and executive is to be decided. From the manner in which these powers are distributed between the several departments and the order in which they are brought to bear on each other, it results that the legislature are

bound by the constitution alone in all their acts and measures. The President in whom is vested the executive power, is bound by the constitution, and all constitutional laws of the legislature committed to him for execution. The judges of the Supreme Court, the functionaries of the judicial department in deciding on the acts and measures of the other departments whenever regularly brought in question before them, are bound to decide agreeable to what is, in their best judgment, the true interpretation, the true intent and meaning of the constitutional provisions on the subject.

To that department, the Supreme Court of the United States, the constitution has intrusted the power of final decision. It is expressly provided that the judicial power shall extend to all cases in law and equity arising under the constitution and laws of the United States, and treaties made under their authority. The court, is, therefore, competent to such decision ; and as there is no provision for a revisal of any judgment or sentence of that court, in any case, its decision is necessarily, final and conclusive. From the manner in which the powers are distributed, and the order of their exercise, congress in whom is vested the powers of legislation, must first act, before any matter can be brought before the judiciary for decision. Congress must, therefore, judge for themselves, for the guidance of their own action, what is the meaning of the constitution as it respects the powers they are to exercise. The constitution has made no provision for obtaining a judicial decision, or judicial advice previous to their action. The same is the situation of the executive ; but in neither case is that judgment final and conclusive; since, by the provisions of the constitution it may be brought in question before the judiciary, the Supreme Court, and that judgment, in effect reversed by a decision that the act is a violation of the constitution, or not warranted by any of the powers therein granted; and as this decision is made final, it is conclusive of the meaning of the constitution on the points embraced in that decision,-as well on the functionaries of the other departments, as on the states and the people. This is clear to a demonstration, when we reflect that the consequence of such decision against the constitutionality of an act is to arrest its force. It cannot thence be carried into effect. It is an effective declaration of its nullity. Such is the relation established by the constitution between the great departments of the government, as it respects their powers in exercise.

A very different opinion has, however, been maintained upon this subject, by some of the first characters in the country, of whom we may consider Mr. Jefferson as standing at the head. An opinion supported by an authority so respectable, merits a full, careful, and candid investigation. I will recite this opinion as expressed by Mr. Jefferson in two passages found in his correspondence lately published, with his observations, not to say, reasonings on the subject. The first, is in a letter to Mrs. Adams, of September 11th, 1804, while he was President of the United States. “ You seem to think it devolved on them, (the judges,) to decide on the validity of the sedition law. But nothing in the constitution has given them a right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution ; because that power has been confided to them by the constitution. That instrument intended that its co-ordinate branches should be checks on each other. But the opinion which gives the judges their right to decide what laws are constitutional, and what not,-not only for themselves, in their own sphere of action, but for the other departments, would make the judiciary a despotic branch."

The second passage is in a letter to Judge Roane, of the 6th of September 1819. “ In denying the right, they (the judges) usurp of exclusively explaining the constitution, I go further than you do, if I understand, rightly, your quotation from the Federalist, of an opinion, that the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact, under which the judiciary is derived. If this opinion be sound, then, indeed, is our constitution a complete felo de se. For intending to establish three departments co-ordinate and independent that they might check and balance one another it has given, accord« Му

ing to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too that is unelected by them and independent of the nation.” 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.” He then goes on to explain by relating what he did in cases under the sedition law as in the passage above recited from his letter to Mrs. Adams. Before proceeding to discuss the opinion here advanced I will make a few observations.

First, the position here taken by Mr. Jefferson, places the decisions of the executive above the decisions of the other departments—the legislature and the judiciary ; for although he assumes to decide for himself on his own act only; yet that very act overrules the decisions of both the others, and vindicates independence to the executive alone.

Second, the power of pardoning was not submitted to the executive for such purpose. It was submitted to the President in trust that he might exercise not merely his own clemency, but the clemency of the government, where justified by the circumstances of the case, or by well considered reasons of state. But such is the nature of the subject and of the trust, that it must necessarily be submitted to the discretion of the department by which it is to be exercised. Nor can that discretion be so 'restrained by any exception or limitations, as always to prevent its perversion to purposes not intended.

Third, a decision of the judiciary, which is the act of that department, is as much an act of the government as a constitutional act of the legislature, or of the executive, and is equally binding on every department as well as all others whom it may concern, and besides, it is in its nature and order an ultimate act. The doctrine advanced, with so much confidence, in the passages above recited, appears to me subversive of the harmony, that ought to subsist in the departments, of all unity of action, and energy in the government. It forbids all expectation of a uniform interpretation, either of the constitution or the laws, all must be in a perpetual state of change with a

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