Imatges de pàgina

sion by which every department of the government equally derives its authority from the people, can be valid. To deny this would be to affirm that the deputy is superior to his principal; that the servant is above his master; that the representatives of the people are greater than the people themselves; and that persons acting in virtue of a delegated authority not only assume what their powers do not authorize, but what they expressly forbid. If it be alleged that legislative bodies are themselves the constitutional judges of their own powers, and that their own construction of them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption where it is not to be collected from the particular provisions of the fundamental compact. Without such express provision, it is not to be intended that the Constitution meant to enable the representatives of the people to substitute their own will in the place of that of their constituents : it is far more rational to conclude that the courts of justice were only intended to represent the sovereignty of the people, in a co-ordinate and independent department; and, in that capacity, to act as an intermediate body between the people and the Legislature, in order, among other things, to keep the latter within the limits assigned to its authority.

The interpretation of the laws is the proper and peculiar province of the courts; and the Constitution is, in fact, and must be regarded by them, as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation ought, of course, to be preferred: in other words, the Constitution ought to be preferred

to the statute; the intention of the people to the intention of their agents. Nor does this conclusion, by any means, suppose a superiority of the judicial to the legislative power. It only presuines that the power of the people is superior to both; and where the will of the Legislature, declared in the statutebook, stands opposed to the will of the people, declared in the Constitution, the judges are to be governed by the latter rather than the former, and ought to regulate their decisions by that fundamental law, over which the Legislature has no control, rather than by those which it may at any time alter or repeal, and which derive their validity and effect from the Constitution alone. It can be of no weight to say that the courts of justice, under the pretence of a repugnancy between a law and the Constitution, may substitute their own pleasure in the stead of the constitutional intentions of the Legislature, for this supposition not only involves a petition of the question, but might as well happen in the case of two contradictory statutes, or in every separate adjudication upon the same statute. The courts are bound to declare the meaning of the law; and if they should be disposed to exercise will instead of judgment, the consequence in the one case, as well as the other, would be the substitution of their own pleasure in lieu of the pleasure of the Legislature. The objection, therefore, if it proved anything, would prove that there should be no judges distinct from the legislative body. But the danger of intrusting judicial and legislative powers in the same hands has already been pointed out; and I have shown, I think, that the object of their separation was not only to create a distinct and independent body to expound the laws, but also to erect a bulwark to defend a constitution, limited in its powers,

against legislative encroachments or executive usur. pation, while it was itself restrained within its proper bounds by corresponding checks, in the hands of the other departments, or arising from its own constitution.

The design of this separation of the judicial power from the other departments, and of the precautions for maintaining its independence, was, moreover, to afford protection to the Federal Government, in the exercise of its acknowledged powers, against the inroads or influence of the state sovereignties; and all the requirements and illustrations adduced in support of the right and duty of the Federal Courts, in the ordinary administration of their authority, to declare void those acts of Congress which, in their judgment, are repugnant to the Constitution, apply with equal, if not greater force, to establish a more extensive power in regard to the acts and proceedings of the state governments. We have seen that the people of the several states, in their adoption of the Federal Constitution, acknowledged that constitution, and the laws and treaties made in pursuance of its authority, to be the supreme law of the land, and as of paramount obligation to the constitutions, as well as the laws, of any of the states. So far, then, from admitting each party to the national compact to interpret that instrument for itself, those very parties, by declaring that the judicial power of the Union should extend to all cases arising under it, vested in the proper department authority to determine its construction, in every case in which such a question should judicially arise, whether directly between the parties to the suit, or collaterally between the parties to the social contract."


THE FEDERAL COURTS. . We now proceed to ascertain in what manner the Federal jurisdiction has been distributed among the several courts, either by the Constitution, or the acts of Congress, carrying the sys. tem into complete effect : in reference to which it may be observed, generally, that the disposition of this power, except in a few specified cases, is left to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends without the intervention of Congress; who, moreover, are not bound to enlarge the jurisdiction of the respective tribunals to every subject which the Constitution warrants, although the whole judicial power ought at all times to be vested in some of the courts created under the authority of the United States.

It is laid down as a rule, in the eighty-second number of “ The Federalist,” that the state courts retained all pre-existing authority, or the jurisdiction which they had before the adoption of the Constitution ; except where it was taken away either by an exclusive authority granted in express terms to the Union, or in a case where a particular authority is granted to the Union, and the exercise of a like authority prohibited to the states, or in the case where an authority is granted to the Union, with which a similar authority in the states would be incompatible. A concurrent jurisdiction in the state courts was admitted

in all such cases; but this doctrine is applicable only to those descriptions of causes of which the state courts had previous cognizance, and not to cases growing out of the new Constitution. Congress, in the course of its legislation, may commit the decision of cases arising under its own laws to the Federal Courts exclusively; but unless the state courts were expressly excluded by the act of Congress, they would, of course, take concurrent jurisdiction of the causes to which those acts may give birth, under the qualifications mentioned; and before the adoption of the Constitution, it was asserted and maintained by its ablest commentators, that in all cases of concurrent jurisdiction, an appeal would, when it was ratified, lie to the Supreme Court of the United States; and that, without such appeal, the concurrent jurisdiction of the state courts in matters of national concern would be inadmissible, because, in that case, it would be inconsistent with the authority and efficiency of the National Government. The practice of that government has been conformable to this doctrine, and the exclusive and concurrent jurisdiction conferred upon the Federal Courts by the acts of Congress are clearly distinguished and marked in correspondence with it. It is, nevertheless, manifest that the judicial power of the United States may in all cases which it comprehends be made exclusive of all state authority, at the election of Congress. Hence the concurrent jurisdiction of the state tribunals depends altogether upon its pleasure, and whenever Congress thinks proper, it may be revoked and extinguished in every case which can constitutionally be made cognizable in the Federal Courts; but without an express provision to the contrary, the

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