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What we want, in any event, is free government. With that, we cannot fail. It is that we have had. It gave us greater prosperity, more happiness and less misery, than any other people ever had enjoyed. It was, too, the freest system; assured a nearer approach to equality, a more general distribution of labor and capital; it had more inherent elements of strength, political and geographical, more positive power for good, and a higher and nobler mission, than any other. It recognized what we call the institution of slavery-an apparent incongruity, we admit, of which we shall speak in another place; but it was so constituted, that no citizen or State or party could have an anti-slavery mission, for the simple reason, that no citizen or State or party could right fully alter or modify one single law of another State, or one single provision of the compact of Union. It was understood that a violation of this principle would cause a sort of leak in the vessel of state, capable of wasting all that was valuable within. This is no new idea, on the subject of legal government; but it is peculiarly applicable to our compound system, because the Union is a government, not of persons, but of States.
It is this feature of the system which makes it necessary to recognize two legal parties--the people of the States, on the one band, and federal representatives or agents, on the other-both being amenable to the law. It would indeed be a strange anomaly in a free government, if the people should be held to account, and not the agent or representative. The scheme was based on the idea that both might offend, and that both should be held responsible to the law. It is too common for the former to regard themselves as bound to submit to the dictation of the latter to confound power with right-to admit, in all cases, the duty of obedience to whatever is exacted, on the part of political representatives. This is not only a great practical error, but one which, if carried out, can hardly fail to overthrow the best popular government which it is in the power of wisdom and patriotism to establish,
It destroys, at once, the equilibrium of the system, by taking away its representative character, and removing from it the prin
ciple of accountability, without which it is not easy to see how a government of laws is to be maintained.
Every citizen is clothed with legal authority to make resistance to such laws or ordinances as he may deem to be unconstitutional and therefore void. The judicial department was created expressly to enable him to appeal from the law-making and the executive power. It is the only check he is able to put upon Congress and the President, when his rights are invaded or his liberty taken away by unauthorized legislation or executive acts. The judiciary, in such cases, is not only the state, but the only possible means of avoiding either tame submission to arbitrary laws, on the one hand, or open resistance, on the other.
On this subject, more than any other, we have the most interesting and timely events of British history to aid us. The struggle for the free system of English laws, which commenced under the Saxons, and which can hardly be said to have ended till after the close of the Napoleonic wars, discloses,'at every stage of its progress, an inflexible purpose to maintain, at every cost and sacrifice, the complete independence of the judiciary. This has evidently been regarded, from the beginning, as the corner stone and foundation of the political edifice. It has been, indeed, a struggle between the crown and the courts--a struggle for dominion on the one side, and for the right of impartial and independent judgment on the other.
In the days of feudal government, it will be remembered, to the date of Magna Charta, the divine right of the king to reign, and passive obedience, were almost universally recognized. The executive government had all the advantages of prescription and established political habits. Those who have studied the practical events of history, will understand the magnitude and strength of those powers of state.
of state. The assailants of the crown came to their work with ideas alone. It was ideas that made war upon the whole scheme of royal prerogatives. It was a war of reason,
, of philosophy, of rational liberty, against effete, decrepit forms, against blind, stupid convictions, and Asiatic habits and customs. It was this war which gave England the purest and ablest literature, the highest judiciary, and the greatest statesmen, philosophers and historians. It made it apparent to all the world, that no mere despotism, however protected by bayonets, can maintain itself against the forces of reason and the searching power of truth.
It is a singular feature of American and English history, that while the people of this country, since the establishment of the Government of the Union, have manifested a tendency at least to increase the powers of their chief magistrate, and to sustain and justify the exercise of almost every act of doubtful constitutional authority; the people of England have struggled through centuries to strip their king of quite all authority, to increase the powers of their legislature, and to make their judiciary an independent tribunal having jurisdiction over both.
This anomaly is the more remarkable, because the people of the States, especially during the last thirty years, have continued to withdraw authority from their governors; insomuch, that in many cases, they have left little more than a name to distinguish the office.
But there is a lesson of profound interest to the American people and to the friends of free government everywhere in these events of history. They disclose the workings of two governments, both based upon principles of popular liberty, both successful, beyond all precedent, in whatever marks the prosperity of the people, in education, industry, enterprise, the distribution of labor, the accumulation of wealth, both starting substantially upon the same mission, but suddenly, as if controlled by some supernatural power, thrown as widely from parallel lines of administration as those which mark the governments of the Asiatic and European
The point of separation is exactly where we abandoned the judiciary.
The exercise of unconstitutional powers by the executive and legislative departments was a mere political offence, so long as the judiciary remained in freedom; because the right and the agencies of punishment still existed. So long there was the means to hold official delinquents to account. Their enforcement might, indeed, have been difficult, and in many cases impossible. The law was violated, but not set aside. The machinery of government was perfect, though the engineer had neglected his duties.
Impeachment, it must be remembered, is not the only process of punishment for official delinquents. That process is one prescribed in certain cases in order to establish the right of their removal from place. Violations of the rights of persons carry with them direct responsibility to injured parties. These parties may resort to the tribunals of justice. When the latter are stricken down, their remedy is gone, and, with it, all accountability and legal responsibility of official trespassers upon the rights of the people. The overthrow of the judiciary is always the first step of those who aspire to supreme control.
1. The responsibility of all federal agents to injured parties is affirmed in the following decision of the Supreme Court: “These orders given by the Executive under the construction of the act of Congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the laws are legally awarded against him ; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a suspicion that the vessel was American would excuse the captor from damages when the vessel appeared, in fact, to be neutral.
“I confess, the first bias of my mind was very strong in favor of the opinion that though the instructions of the Executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their supe. riors, which, indeed, is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against the Government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have
receded from this first opinion. I acquiesce in that of my brethren, which is, that the instruction cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.”
2. Chief-Justice Marshall defines with wonderful accuracy the character of the government and the great offices of the judiciary in the following lucid exposition:
“This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,
“Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the Supreme Court to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'
“The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description, and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.
“ The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
“ In the distribution of this power it is declared that 'the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction.'
" It has been insisted, at the bar, that, as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words ; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
“If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be