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WINE.- One of the most interesting of comparatively recent industries is the growth of grapes and the manufacture of wine. Some of the Ohio, Missouri, Virginia, and Californian valleys are found to be well adapted to the growth of vineyards; and there are now over 400 wine-making establishments in the country, producing champagnes, hocks, ports, sherries, and sweet dessert wines. Of these Missouri has about 200, employing a capital of $700,000, and producing about $1,000,000 annually; California has 150; Ohio, 40; New York, 10; and Illinois, 5. The total of the various kinds produced is about $2,500,000.

Malt Liquors. — These are made in something over 2,000 breweries, which are spread completely over the territory of the Union; the largest number being in New York, Pennsylvania, Ohio, Wisconsin, Michigan, Illinois, Iowa, Indiana, and Missouri, -- States, let it be observed, where the German element of the population is most thickly gathered.

AGRICULTURAL IMPLEMENTS. – The capital employed in the manufacture of agricultural implements has increased, in twenty years, from $3,500,000 to $35,000,000, and the products from $7,000,000 to $52,000,000. Since 1860 this industry has somewhat more than doubled.

INCREASE OF MANUFACTURES.—The value of manufactures — in which are included fisheries, quarrying, and mining – increased in the ten years between 1860 and 1870, 108 per cent, this estimate being the actual increase, after deducting the enhancement of prices by the issue of paper currency. The nominal increase was from nearly $2,000,000,000 in 1860 to $1,002,000,000 in 1870. That is to say, that the United States produced over twice as much manufactured goods, in money value, five years after the close of the war as they did in the year before the war broke out. The total number of manufacturing establishments in the country, which in 1860 were 140,433, were, in 1870, 252,148. The States which rank highest as manufacturing centres are in the following order : Pennsylvania, which has 37,200; New York, which has 36,206; Ohio, which has 22,773; Massachusetts, which has 13,212; Illinois, which has 12,597; Indiana, which has 11,847; Missouri, which has 11,871; and Michigan, which has 9,455. The industrial empire will be seen to be taking its way westward. And this is a comparatively recent movement; for while Massachusetts, twenty years ago, had about 9,000 establishments, Illinois, which has now nearly caught up with her (as above), only had 3,000; Indiana, only 4,000; and Michigan, only 2,000. In twenty years Michigan has increased her manufactories fivefold, Illinois more than fourfold, and Missouri fivefold, while Massachusetts has only increased hers one-third.



In preceding chapters we have considered the executive power and the legislative power. We have now to treat of the judicial power.

Our national constitution is, as has been said, a new thing upon the earth, in many respects; in no one more important or more remarkable than in the distinction it makes between the three great essential powers of all government. It clearly defines each of them. It separates one from the other, making them independent of each other, and yet establishing between them an indissoluble connection by unity of service and accordance of action, so that they work together, each in its own way, but all concurring in the preservation of our national rights and national existence, and of the personal and property rights of every individual in the nation. One body carries the law into effect; another body makes it; a third body determines what is law, and construes and applies the law, and keeps the other two from wandering outside the path of power and of duty assigned to them.

This distinction between the executive, the legislative, and the judicial functions, grew up in England, in some slight degree, but from no definite design. Our fathers recognized it, and carefully provided for it, as the surest safeguard of political rights; for the obvious reason that if the executive can make what laws he will, or construe and apply them as he will, there is an obvious despotism; and if any other body in the States can unite these functions, that body becomes a despotic executive. Of these bodies, nothing is now more universally admitted than that it is the function of the judiciary to judge and decide whether a law be constitutional, and in that case valid, or unconstitutional, and therefore of no force whatever; and that it is not merely their certain right, but as certainly their duty, to do so, when the question is properly before them.

This function of the judicial power was wholly unknown before; for how could a judiciary be charged with the construction and preservation of a constitution, before such a thing as a written constitution existed ? No wonder that our fathers scarcely knew how great a thing they had done in taking this step. No wonder that our judicial bodies themselves did not, in the first years of our pational existence, know certainly that this important power was entrusted to them, or see clearly their duty in relation to it. To prove this, let me say that in 1792 a pension law was passech requiring the judges of the Circuit Courts of the United States to carry the same into effect. The question soon came before many of these courts, whether this act was constitutional; and they all decided at once that it was unconstitutional, because it imposed upon judges duties which certainly were not judicial. But the judges for the district of New York, — Jay, Cushing, and Duane, – while clear that the law was unconstitutional, held that “from their desire to manifest their high respect for the national legislature,” they would consider that the law had only appointed as commissioners the persons who happened then to be judges, inadvertently describing them by their official names instead of their personal names; and accordingly they undertook the duties of commissioners. The court for the district of Pennsylvania (Wilson, Blair, and Peters), and that for North Carolina (Iredell and Sitgreaves), went so much further as to refuse to proceed under the act; but each court wrote a long letter to the President, apologizing, almost humbly, for their decision, the Pennsylvania court calling it " a painful occasion," and the North Carolina court speaking of the “ lamentable difference of opinion.” And so things went on until 1803, when, in Marbury's case, so called, Chief Justice Marshall considered the question in all its bearings; and, with a force and clearness which I cannot characterize otherwise than by calling them most admirable, settled the question, as I hope, for all time. What he considered this power of the judicial body can best be told in his own emphatic conclusion: “ This is of the very essence of judicial duty."

Very far are we, however, from understanding now the exact limitations of judicial duty in this respect; or, in general, the nature and force of what Jeremy Bentham called "judge-made law.” It may well be hoped that as the nation grows older it will grow wiser, and that some questions will hereafter be settled to which no certain answer can now be made. But already, I think, there are three rules on this subject which may be considered as established.

One, that the court cannot judicially inquire into any law, unless it be directly involved in some case properly brought before them by the parties in interest. (I have nothing to say here of instances in which a State constitution authorizes the executive or legislatur; to ask the opinion of the judges.)

Secondly, if they consider any law or rule or principle, which is not so involved in the case before them that their consideration of it is necessary for their judgment, they go just so far beyond their judicial duty, and can utter no word of judicial power. They may make essays, or utter apothegms of much interest and value as the sayings of wise men; but what they say is not judiciai ruy




further than it is distinctly involved in their judgment, and therefore it is not authoritative. It may be a saying (dictum), but it is not a decision.

Thirdly, whatever they adjudge and determine within these limits may be reversed or qualified by the same judges or their successors, or by the legislature if the constitution permits, but, until so reversed or qualified, it has the force of law.

Not only from remarks made where we might expect party feel. ings would obscure judgment, but from words sometimes uttered in high places, we have too much reason to fear that the great duty of the judiciary as the expounder and defender of the constitution is not so clearly seen, or so unreservedly acknowledged, as from its vast importance it oughi to be.

Our government is established and determined by the constitution. This the people made, in the exercise of their sovereign will. And the one certain thing about it is, that it is a government of limited powers. Not only is the whole government limited, but every department of it is limited within clearly defined boundaries. It is absurd to say that the constitution can remain in force, or the government continue to be what the constitution makes it, if

any one of its departments may at its own pleasure transcend the limits imposed upon it.

The constitution is the law of the law. If Congress pass a bill of attainder, under which a citizen may be deprived of life or property without trial; or, if Congress pass a law that on a trial for treason the defendant may be convicted on the evidence of one witness when the constitution requires two, - how can the accused obtain relief, or, what is far more important, how can the constitution itself obtain relief and an adequate defence against this invasion, except by the interference of that body whose function it is to construe and apply all law. That body, the judiciary, will look to the constitution for direction what to do. They read there that Congress has not the power to pass a bill of attainder. Must they not say at once that this bill of attainder was not passed by competent authority, and therefore is not law? The judiciary must have, can have, no guide but the law. But the constitution is the supreme law of the land; it is the law of the law. By the very terms of their constitution (sixth article), the people declare that the constitution is the supreme law, and then laws made in pursuance of the constitution are valid.

Only these laws are laws. The judiciary have no more right to regard as a law one not made in pursuance of the constitution, than they would have to regard as law an order sent to them by the President, or by the general in command of the ariny. And who are to determine whether the supposed laws be made in pursuanco of the constitution? Certainly not the President; for, if we give him this power, he becomes an irresponsible despot. Certainly not Congress; for it is they who made the law. Obviously it must bo the judiciary; for there is no other body which can do it for them: and to construe a law, and apply it to the case before them, is precisely what they were appointed to do. And how can it be said that it is their business to examine into a law, and declare its meaning and force, but they must not examine into the question whether it be a law at all ?

Wisely has the constitution deposited this power in the hands of the judiciary. First, because this power cannot make them despotie or tyrannical, inasmuch as they have no power to make law, execute law. Their power in this matter is only negative. They can say that such a law is a law only in form and appearance; but is not a law in fact and in force. But they cannot say, That law which Congress made is not a law; but this is law which we make, instead of the law that Congress made. They cannot make void that law because they do not like it; they can only say that it is void, because not made in pursuance of the constitution.

Secondly, because the judiciary consists of a body of men selected for their knowledge of law, trained to understand the law, and separated from all other business in life that they might devote themselves to this one work without a divided mind, and undisturbed by other pursuits and interests. For so, at least, they ought to be selected, and ought to live.

It was said at Washington, on a recent interesting and exciting occasion, “Why should Congress yield such deference to the opinion of those men, sitting as a court? There are amongst us, and in either House, as good lawyers as sit upon that bench. Why may not they be trusted ?” But all the members of Congress are not lawyers; and it is well they are not, for all interests and all modes and forms of opinion and judgment should be represented there, and have due influence there. And all the lawyers there are not sound and learned lawyers, for they were not selected by any such standard, or for such reasons exclusively. But the justices of the Supreme Court were so selected; on no other grounds in theory, and on these grounds mainly in practice. And being so selected, constantly busied in the work of expounding and applying law, sequestered mainly, if not altogether, from other pursuits, and unable to forget, even if they would, the great duties which are always before them, how can it be doubted that we have here a body of men, so selected, organized, and employed as to develop to the utmost their fitness for the great duty of expounding, protecting, and pre

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