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ciary as a controlling element in our civil polity, we shall be left without any thing to give stability to the administration of affairs, to render the growth which all desire, healthy and permanent, the progress continuous and sure.

$ 147. But it is sometimes objected with more plausibility, that to concede the attribute of finally and authoritatively interpreting the Constitution to the Supreme Court, would be to exalt the Judiciary above both the other departments, to make it, practically, the only law-giving power. This objection, is, however, based upon an entire misconception. The function of the court is essentially a secondary one, inferior in every respect to that belonging to Congress. It cannot move until the legislature has acted. It cannot pronounce beforehand upon the validity of a proposed measure. It cannot proceed directly against the other departments. It must wait until a

” be brought before it by litigant parties, and as such case may involve a construction of the Constitution, the rights

, and duties of these parties cannot be ascertained and declared without passing upon the meaning of the fundamental law. Important, therefore, as is the function in question, it is intrinsically subordinate to those of the legislature and the Executive. It should be remembered, also, that the Supreme Court, as a distinct and co-ordinate department, was created, and the judicial powers which it may exercise, were conferred, by the same sovereignty that created the legislature and the Executive, and endowed them respectively with their political capacities. The people could ordain and establish such agents as they pleased, and distribute functions in the manner which seemed to them best. Each department rests upon the same foundation ; each wields an authority granted by the same giver; and the action of each within its appointed sphere cannot be regarded as an infringement upon the prerogatives of the others.

$ 148. I have purposely thus far refrained from citing any judicial authorities in support of the position that the national Judiciary is the final arbiter as to the meaning of the Constitution. In fact, the whole history of the Supreme Court is ar authority. Every case involving a construction of the Constitution, and a judgment as to the validity of a statute of Congress or of a state legislature, or act of an executive officer, is an implied assumption of the power under discussion. In several important and leading cases, the question was raised and examined by the Supreme Court of the United States with a cogency of argument which never has been, and never can be, answered. It is sufficient to refer to the very early case of Vanhorne’s Lessee v. Dorrance, and to the cases of Martin v. Hunter's Lessee,2 and Cohens v. The State of Virginia, for the opinions of Chief Justice Marshall and of Mr. Justice Story, and to the recent case of Ablemann v. Booth,4 for the judgment of Chief Justice Taney. These cases should be diligently and carefully studied, not only by all gentlemen preparing for the legal profession, but by all who are preparing for the higher duties of active American citizenship, both as models of juridical learning and ability, and as statements of the principles upon which our whole political system is based. If any matter can be put at rest by an unvaried course of judicial decision, and by an almost constant assent of the Executive and the legislature, and by an acquiescence and approval of the people, the truth that the national courts are the final judges of the meaning of the Constitution, and the extent and character of the powers conferred upon

the United States government and upon the several states, may be considered as established.

$ 149. It was stated in § 122 that there are three classes of sanctions applicable to official persons by which the observance of the organic law may be assured. It remains to describe, in a brief manner, the method of applying these coercive means. Two of these sanctions are personal in their nature, applied lirectly to the offender. The first is impeachment, which may be prosecuted against the President, Vice-President, and all civil officers of the United States for treason, bribery, or other high crimes and misdemeanors. The whole subject of impeachment will be examined at large in a subsequent chap1 2 Dall, 304.

2 1 Wheat. 304. 3 6 Wheat. 264.

4 21 How. 506. 5 Const. Art. II. Sec. 4.

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ter, It is sufficient now to say that the House of Representatives has the sole power of inaugurating the proceeding, and the Senate are the sole judges for trying the accusation. It is generally conceded that impeachment is a sanction applicable not only to acts which are made crimes by the law, but also to political acts which are wilful, intentional, and corrupt, and of course, to intentional violations of the Constitution by a civil officer.

But the law regards many wilful and corrupt political acts done by official persons as positive crimes ; and for these the offender is liable to be indicted, tried, convicted, and punished according to the ordinary course of administering the criminal law. This subject, however, hardly falls within the scope of constitutional law, and will be passed by without further comment.

$ 150. By far the most important means for assuring the observance of the fundamental law, is the power residing in the courts to declare a statute of Congress or of the state legislatures void, and an executive act unauthorized, when in contravention to the provisions of the Constitution. The other sanctions punish the offender, this relieves the citizen; the others do not affect the wrongful measure, this takes away its power to injure; the others look chiefly to the guilt of the official agent, this to the rights of the people. Assuming that the Supreme Court of the United States is the final depositary of this power, we are to inquire how that tribunal is to proceed in the exercise of its most important attribute. The Constitution which creates the Supreme Court, defines its jurisdiction. The exercise of this jurisdiction is confined to “ cases

controversies.” “ Cases ” and “controversies” plainly refer to the same thing, and are general words to describe the ordinary proceedings by which the contentions of litigant parties are brought before a judicial tribunal for decision. A 6 case” or “ controversy " involves the idea of a party prosecuting in a court to establish or maintain some right or enforce soine duty against another party. The Supreme Court, there1 Const. Art. I. Sec. 2, $ 5.

2 Const. Art. I. Sec. 3, § 6 3 Const. Art. III. Sec. 2, § 1.

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fore, can only exert its function of interpreting the Constitution, by hearing and determining some case or controversy brought before it. The adjudication upon the rights and duties of the parties is the principal thing, the construction of the Constitution is incidental. The Supreme Court cannot, under the form of a case brought before it, interfere with the political functions of the President or of Congress. Thus au injunction could not be issued to restrain the President from enforcing a statute on the ground that it was contrary to the Constitution and void ; à suit demanding such relief against the Executive would not even be entertained. The same would be true of any attempt to restrain Congress as a body, or individual members of the legislature, from passing a proposed measure. This point was expressly decided in the recent extraordinary case of the State of Mississippi v. Andrew Johnson, to which a more extended reference will be made in a subsequent chapter.

Thus the duties of the Congress, the President, and the Supreme Judiciary are kept distinct; the work allotted to each is left in its own hands ; it is only the results of that action, the juridical rights and duties created by it, which can give rise to an opportunity for the Supreme Court to examine the work itself and pronounce upon its validity.







§ 151. I now pass to the third grand division of the subject, which is the one of most practical importance, and in respect to which the most minuteness of detail and illustration is needed: What are the powers and capacities of the government of the United States ?

In treating of this theme I shall proceed in the following order :

First. To develop, in a brief manner, the leading ideas of civil polity which are involved in the whole complex system of political organization;

Secondly. To describe the external form of the government, and the methods by which the machinery is kept in motion ; and

Thirdly. To state and discuss the powers and functions of the Legislative, the Executive, and the Judicial Departments separately.

§ 152. What are the leading ideas of civil polity involved in the complex system of political organization, which the people of the United States has contrived ?

Thus far our thoughts have been constantly directed to the nationality of the one people of the United States, and to the

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