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appellate ; the distribution of jurisdiction, made in the Constitution, is form without substance.
“Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case a negative or exclusive sense must be given to them, or they have no operation at all.
“ It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.
“If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no farther than to provide for such cases, if no farther restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction, unless the words be deemed exclusive of original jurisdiction.
“When an instrument organizing fundamentally a judicial system, divides it into one supreme and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.
“To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
“ It has been stated, at the bar, that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.
“ It is the essential criterion of appellate jurisdiction that it revives and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the court to exercise its appellate jurisdiction.
“The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
“The question whether an act, repugnant to the Constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
“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 proceeded is supreme, and can seldom act, they are designed to be permanent.
" The original and supreme will organizes the Government, and assigns to different departments their respective powers. It may be either stopped here, or establish certain limits not to be transcended by those departments.
“ 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 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, the legislature may alter the Constitution by an ordinary act.
“Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
“ If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the Constitution is void.
“This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
“If an act of the legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
“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 a law be in opposition to the Constitution, if both the 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.
“If then the courts are to regard the Constitution,-and the Constitution is superior to any ordinary act of the legislature,--the Constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
“That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.
“The judicial power of the United States is extended to all cases arising under the Constitution.
“Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into ? That a case arising under the Constitution should be decided without examining the instrument under which it arises ?
“This is too extravagant to be maintained. In some cases then the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey ?
“There are many other parts of the Constitution which serve to illustrate this subject. “It is declared that 'no tax or duty shall be laid on articles exported from any State.' Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it; ought judgment to be rendered in such a case ? ought the judges to close their eyes on the Constitution and only see the law?
The Constitution declares that 'no bill of attainder or ex post facto law shall be passed.'
“If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?
««No person,' says the Constitution, shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'
“Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court sufficient for conviction, must the constitutional principle yield to the legislative act?
“From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as the legislature.
“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
“The oath of office too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and will do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as
according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.'
“Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government--if it is closed upon him, and cannot be inspected by him?
“If such be the real state of things, it is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
“It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
“Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions—that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
3. Speaking of the attack upon security in France under the monarchy, Ben. tham says, under the head of General Confiscations : “I refer to this head those vexations exercised upon a sect, upon a party, upon a class of men, under the vague pretence of some political offence, in such manner that the imposition of the confiscation is pretended to be employed as a punishment, when in truth the crime is only a pretence for the imposition of the confiscation. History presents many examples of such robberies. The Jews have often been the object of them; they were too rich not to be always culpable. The financiers, the farmers of the revenue, for the same reason, were subjected to what were called burning chambers. When the succession to the throne was unsettled, everybody, at the death of the sovereign, might become culpable, and the spoils of the vanquished formed a treasury of reward in the hands of the successor. In a republic torn by factions, one half of the nation became rebels in the eyes of the other half. When the system of confiscations was admitted, the parties, as was the case at Rome, alternately devoured each other.
“The crimes of the powerful, and especially the crimes of the popular party in democracies, have always found apologists. "The greater part of these large fortunes,' it has been said, 'have been founded in injustice, and that was only restored to the public which had been stolen from the public. To reason in this manner is to open an unlimited career to tyranny; it is to allow it to presume the crime, instead of proving it. Ought so grave a punishment as confiscation to be inflicted by wholesale, without examination, without detail, without proof? A procedure which would be deemed atrocious if it were employed against a single person; does it become lawful when employed against an entire class of citizens ? Can the evil which is done be disregarded because there is a multitude of sufferers whose cries are confounded together in their common shipwreck ?”
4. Commenting upon the fallacies in the Declaration of Rights by the French National Assembly in 1791, Jeremy Bentham remarks on its declaration that “ All men are born and remain free, and equal in respect of rights :"}
“ All men are born free? All men remain free? No, not a single man; not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection-the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born-in this subjection he continues for years for a great number of years—and the existence of the individual and of the species depends upon his so doing.
• What is the state of things to which the supposed existence of these supposed rights is meant to bear reference ?-a state of things prior to the existence of government, or a state of things subsequent to the existence of government? If to a state prior to the existence of government, what would the existence of such rights as these be to the purpose, even if it were true, in any country where there is such a thing as government ? If to a state of things subsequent to the formation of government--if in a country where