is vested, by the Constitution, in the Supreme Court of the United States. *

Some have imagined that this makes the Not superiJudiciary superior to the Legislature; but this or to Legis

lature. is a mistake, arising from an improper view of the nature of their respective functions. They are both equal, but both inferior to the Constitution, which is the direct expression of the will of the people. The Judiciary does not go out of its proper sphere to annul acts of the Legislature ; but the courts must decide cases brought before them, according to the law of the land. It is not pretended that a legislative act, contrary to the Constitution, is valid. If such an act be presented to the court, the judges must determine which they will obey, the act of the Legislature, or the Constitution. No one could doubt that they should prefer the Constitution, and the consequence is, that the law is pronounced void.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both ; and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental law, rather than by those which are not fundamental.t

The same reasoning applies to State constitutions, and State laws; and it is no dero

* 1 Kent's Comm. 293, 294.

+ Federalist, No. 78.

Not superi- gation from the dignity of a State, that one or to Legis- of its laws should be declared void, if conlature.

trary to the Constitution of the United States, any more than if one of its own courts exercised the same authority in relation to its own Constitution. If a State law be contrary to the Constitution of the United States, and the Supreme Court have to decide which it will consider superior, it undoubtedly must prefer the latter. A contrary determination would be subversive of all government.

This autho

This is a very delicate trust confided to rity necessary.

the Judiciary, but it must reside somewhere; else there would be no common standard of construction, no arbiter of the differences, which must arise among the members of the government. The people have placed it in this department, by declaring, in the Constitution, that the Constitution is the

supreme law of the land, and that the judicial power shall extend to all cases in law or equity arising under the Constitution. And the Supreme Court has been wisely designated for this purpose. The judges of this court are selected from the nation at large, for their integrity, ability, and legal acquirements: they are, therefore, without local partialities or prejudices. They are raised, by their situation, above all dependence upon the other departments of government, or fear of undue influence ; and their ordinary occupation leads them to a thorough acquaintance with the principles of the Constitution, and the laws of the several States, as well as of the Union. They have no interest but to promote the general good; and there

It is true,

is, therefore, every reason to expect that This authotheir decisions will be correct.

rity neces

sary. they are men, and therefore, liable to err; but it would be impossible to constitute a tribunal with greater prospect of correctness, or to which equal, if not greater, objection might not be made.

It sometimes happens, that questions re- Appeal

from State specting the constitutionality of laws, arise Courts. in cases before the State courts, which they must determine in the first instance. But it is evidently necessary that the ultimate decision must be made by the Supreme Court of the United States ; for otherwise, there might be conflicting decisions, on the same point, in different States; and that which was decided to be constitutional and valid in one State, might be considered unconstitutional, and void, in another.

It is therefore provided, by the twentyfifth section of the judiciary act of 1789, that the final judgment or decree in any suit in the highest court of a State, in which a decision could be had; where the validity of a treaty or statute of, or an authority exercised under the United States is drawn in question, and the decision is against its validity; or where is drawn in question the validity of a statute of, or authority exercised under any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favour of such its validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the

Appeal from State Courts.

title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, it may be re-examined, and reversed or affirmed, in the Supreme

Court of the United States. This leaves to the States the opportunity of deciding such questions in their highest tribunals; but reserves the ultimate decision for the Supreme Court; and is, clearly, in accordance with the Constitution. That instrument declares that the judicial power

of the Union shall extend to all cases in law or equity, arising under the Constitution, laws, and treaties of the United States ; and if there could be no appeal from the State courts, there would either be many cases arising under the Constitution, laws, and treaties of the United States, to which the judicial power of the Union would not extend; or it would be necessary to make some arrangement, by which such cases should be originally decided in the Federal courts. Without this ultimate resort to the Supreme Court, the Union could not be preserved ; but would be entirely dependent upon the State Legislatures, which might enact laws destructive of all its powers, without any control but their own will ; as was the case under the former confederation.


Original In all cases affecting ambassadors, other late juris public ministers, ånd consuls, and those in

which a State shall be a party, the Supreme Court has original jurisdiction. In all the other cases, the jurisdiction of this court is by appeal, with such exception, and under such regulations, as Congress may make.

The trial of all crimes, except in cases of Crimes to impeachment, shall be by jury; and such be tried by

jury. trial shall be held in the State where the crimes shall have been committed ; but when not committed within any State, the trial shall be at such place, or places, as Congress may, by law, have directed. Trial by jury has always been esteemed the palladium of liberty, the safeguard of individuals, against oppression by the government; and, therefore, it is expressly secured by the Constitution.


So important was it considered, that an Rights of amendment was proposed, and adopted, soon

accused after the organization of the government, which declares that in all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury, of the State or district wherein the crime shall have been committed ; which district shall have been previously ascertained by law, and to be informed of the nature, and cause, of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour ; and to have the assistance of counsel in his defence.

To those who are unacquainted with the practices of other countries, this extreme caution may appear unnecessary ; but when it is recollected, that there are countries, in which persons are sentenced, and punished, without any public trial; without seeing, or knowing the witnesses against them, or having any opportunity of procuring witnesses in their favour ; and even, sometimes, without being informed of the nature of the

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