so far forget its duty as to make the gross and dangerous perversion supposed, the State would find security in the independent tenure, by which the judges of the United States courts hold their office. As highly important as this tenure is to protect the judiciary against the encroachments of the other departments of the government, and to insure an upright administration of the laws, as between individuals, it would be greatly to over-estimate its importance to suppose, that it secures an efficient resistance against Congress, in the case supposed; or, more generally, against the encroachment of the federal government on the reserved powers. There are many and strong reasons why it cannot.

In the first place, all cases like those supposed, where the power is perverted from the object intended to be effected by it, and made the means of effecting another of an entirely different character, -are beyond the cognizance of the courts. The reason is plain. If the act be constitutional on its face; if its title be such as to indicate that the power exercised, is one which Congress is authorized by the constitution to exercise; and there be nothing on the face of the act calculated, beyond dispute, to show it did not correspond with the purpose professed, the courts cannot look beyond to ascertain the real object intended, however different it may be. It has (to illustrate by the case in question) the right to make laws to carry into execution the guaranty of a republican form of government to the several States of the Union; and, for this purpose, to determine whether the form of the

government of a certain State be republican or not. But if, under the pretext of exercising this power, it should use it for the purpose of subjecting to its control any obnoxious member, or members of the Union, be it from the impulse of fanaticism, lust of power, party resentment, or any other motive, it would not be within the competency of the courts to inquire into the objects intended.

But, if it were otherwise,-if the judiciary could take cognizance of this, and any other description of perversion or infraction by the other departments, it could oppose no permanent resistance to them. The reason is to be found in the fact, that, like the others, it emanates from, and is under the control of the two combined majorities;-that of the States, and that of their populations, estimated in federal numbers. The independent tenure, by which the judges hold their office, may render the judiciary less easily and readily acted on by these united majorities; but as they become permanently concentrated in one of the sections of the Union, and as that section becomes permanently the dominant one, the judiciary must yield, ultimately, to its control. It would possess all the means of acting on the hopes and fears of the judges. As high as their office, or independent as their tenure of office is, it does not place them above the influences which control the other members of government. They may aspire higher. The other judges of the Supreme Court, may, will, and honorably aspire to the place of the Chief Justice;-and he and all of his associates, to the highest post under the government. As

far as these influences extend, they must give a leaning to the side which can control the elections, and, through them, the department which has at its disposal the patronage of the government. Nor does their office place them beyond the reach of fear. As independent as it is, they are, like all the other officers of government, liable to be impeached: and the powers of impeaching and of trying impeachments, are vested, respectively, in the House of Representatives and the Senate,-both of which emanate directly from the combined majorities which control the government. But, if both hope and fear should be insufficient to overcome the independence of the judges, the appointing power, which emanates from the same source, would, in time, fill the bench with those only whose opinions and principles accord with the other departments. And hence, all reliance on the judiciary for protection, under the most favorable view that can be taken, must, in the end, prove vain and illusory.

I have now shown that the 25th section of the judiciary act is unauthorized by the constitution; and that it rests on an assumption which would give to Congress the right to enforce, through the judiciary department, whatever measures it might think proper to adopt; and to put down all resistance by force. The effect of this is to make the government of the United States the sole judge, in the last resort, as to the extent of its powers, and to place the States and their separate governments and institutions at its mercy. It would be a waste of time to undertake to show that an assumption,

which would destroy the relation of co-ordinates between the government of the United States and those of the several States,-which would enable the former, at pleasure, to absorb the reserved powers and to destroy the institutions, social and political, which the constitution was ordained and established to protect, is wholly inconsistent with the federal theory of the government, though in perfect accordance with the national theory. Indeed, I might go further, and assert, that it is, of itself, all sufficient to convert it into a national, consolidated government;-and thus to consummate, what many of the most prominent members of the convention so long, and so perseveringly contended for. Admit the right of Congress to regard the courts of the States as inferior to those of the United States, and every other act of assumption is made easy. It is the great enforcing power to compel a State to submit to all acts, however unconstitutional, oppressive or outrageous, or to oppose them at its peril. This one departure, of which the 25th section of the judiciary act was the entering wedge, and the act of the 3d March, 1833, the consummation, may be fairly regarded as the salient point of all others; -for without it, they either would not have occurred, or if they had, might have been readily remedied. Or, rather, without it, the whole course of the government would have been different,-the conflict between the co-ordinate governments, in reference to the extent of their respective powers, would have been subject to the action of the amending power; and thereby the equilibrium of the

system been preserved, and the practice of the government made to conform to its federal character.

It remains to be explained how, at its very outset, the government received a direction so false and dangerous. For this purpose it will be necessary to recur to the history of the formation and adoption of the constitution.

The convention which framed it, was divided, as has been stated, into two parties;—one in favor of a national, and the other of a federal government. The former, consisting, for the most part, of the younger and more talented members of the body, -but of the less experienced,-prevailed in the early stages of its proceedings. A negative on the action of the governments of the several States, in some form or other, without a corresponding one, on their part, on the acts of the government about to be formed, was indispensable to the consummation of their plan. They, accordingly, as has been shown, attempted, at every stage of the proceedings of the convention, and in all possible forms, to insert some provision in the constitution, which would, in effect, vest it with a negative;-but failed in all. The party in favor of a federal form, subsequently gained the ascendency;-the national party acquiesced, but without surrendering their preference for their own favorite plan;—or yielding, entirely, their confidence in the plan adopted, -or the necessity of a negative on the action of the separate governments of the States. They regarded the plan as but an experiment; and determined, as honest men and good patriots, to give