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In the creation of the governments, Federal and State, it was designed that certain pre-eminent and wholesome principles should be secured in an enduring structure beyond the passions and prejudices of popular assemblies and eccentric executives. It was thought with a farsightedness which experience has abundantly justifiedthat the fundamental principles affecting life, liberty and property which had been wrought out under the pinch and pressure of revolution, would yield their richest fruitage and take their deepest root in a soil pre-empted by the organic law of the land. A people profoundly solicitous of the certainty and perpetuity of safeguards which they deemed essential to preserve their cherished ideals of government not only declined to entrust them to the infinite vicissitudes of political controversy but in a measure declined to trust themselves. They established the agency of a general government, and set down within the meaning of simple words the limitations of its power and dedicated it to a service within that specific sphere. They created the respective States and put upon these instrumentalities such prohibitions as to them seemed necessary to insure the preservation, unimpaired, of their fundamental faith.

Having bound themselves and their respective agencres together before the eyes of the world in Constitutions created to conserve the cardinal principles of government against the arts of men and the accidents of time, they reserved to themselves every other power to employ in the progress of years for the improvement and upbuilding of the race and its country.

To put the powers of government into effect, and to continually carry on its important and increasing work, it was necessary to devise a plan consistent with the maintenance in full vigor of the underlying principles. A President deriving his authority from the popular judg

ment, and returning periodically to the people for a continuance or a succession, was vested with the executive power; a Congress composed of a Senate and a House the one representative of the States and the other representative of the people, but each in the last analysis directly dependent upon the approval of the people, was vested with the legislative power. A Judiciary appointed by the President, by and with the advice and consent of the Senate, was vested with the judicial power.

These great co-ordinate departments, manifesting the judgment, the will and the conscience of a free people, were conceived and intended to be each independent of the other and all obedient to the Constitution. Owing their existence first and last to the united judgment of the people, they were set to the sacred task of resolutely maintaining the rights fixed in a written Constitution.

How to insure the independence of each as against the other, how to arrest the natural tendency of each to invade the jurisdiction of the other, how to destroy utterly any dependence by one upon the other, was a problem productive of much dispute and doubt.

The Judiciary occasioned more solicitude and provoked more controversy, since it was least able to take care of itself, and it was a solicitude revealing the wisdom and patriotism of the early lawyers and statesmen. For, having organized a government whose powers were expressed in plain words, whose limitations were set down with a jealous care, having lain by the sword drawn to defeat the doctrine of kingly sovereignty and to establish the doctrine of the sovereignty of the people and given themselves to the delicate duty of demonstrating the wisdom and efficiency of a government of limited powers, it was of critical importance that the department which was to enforce such limitations should in no sense depend for its

existence or its tenure upon either of two departments most likely to attempt an extension or a contraction of the powers of government. In the fact that the Judiciary must measure the validity for the acts of the Executive and the Legislature according to the standard of a written Constitution, is found the fundamental reason for its continued independence of them or their political power. The institutions of men are afflicted with the infirmities of

the race. The agencies which they establish, however much they may be invested with mystery and majesty, however imposing they may seem in the pompous exercise of their power, are nevertheless burdened with the weaknesses and embarrassed by the limitations of ordinary men, and those supreme instrumentalities created to administer justice and to preserve the solemn political agreements of a nation or a State should never be compelled to choose between their constitutional duty and their political existence.

In one of the first cases, dealing with the functions of the Judiciary, Chief Justice Marshall delivering the opinion, said (Marbury v. Madison, I Cranch., 68):

That the people have an original right to establish for their future government such principles as in their opinion. shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental, and as the authority from which they proceed is supreme and can seldom act they are designed to be permanent. The government of the United States is of the latter description. The powers of the Legislature are defined and limited, and that those limits. may not be mistaken or forgotten the Constitution is

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written. To what purpose are powers limited, and to what purpose is that limitation committed to writing if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. * * It is emphatically the province and duty of the Judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each. So if the law be in opposition to the Constitution, if both law and the Constitution apply to a particular case so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these

conflicting rules governs the case. This is of the very essence of judicial duty."

To us, long accustomed to regard this as incontestable, it may seem needless to recur to so old an opinion. But it is from the power and duty of the Judiciary here so early and so ably vindicated that arises the reason for its independence of the other departments of the government.

Mr. Hamilton, in the Federalist, discusses with his usual clearness and wisdom the relation of the Judiciary to the other departments (Federalist paper No. 78):

"Whoever attentively considers the different departments of power, must perceive that in a government in which they are separated from each other, the Judiciary,

from the nature of its functions will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to injure or annoy them. The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and right of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty. This simple view of the matter suggests several important consequences. It proves incontestably that the Judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that, though individual oppression may now and then proceed from courts of justice, the general liberty of the people can never be endangered from that quarter; I mean, so long as the Judiciary remains truly distinct from both the Legislature and the Executive; for I agree that "there is no liberty if the power of judging be not separated from the legislative and executive powers." It proves in the last place that, as liberty can have nothing to fear from the Judiciary alone, but would have everything to fear from its union with either of the other departments; that, as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation;

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