son's pleasure at the indications of a revival of federalism, and his panegyric of its virtues, are mistaken, if he meant the principles of Hamilton, and what he would call federalism. It is very common to say, as the Judge did, that the federal doctrine is the dernier resort on all emergencies. But nothing is more contrary to history, if centralising federalism be meant. So far from it, the principles of that federalism are not only exploded here, but their English models are much decried; the politics of Hamilton, Morris, and their respectable compatriots, the American doctrinaires, --some of them, even with Washington's sanction—are gone forever. Their English predilections for limited suffrage, profuse taxation, long terms of office, national debt, funding, a national bank, restricted naturalization, alienage, sedition, libels, and others, the great articles of English creed, and the favorites of American federalists, are no longer tolerable. He must be blind to continual manifestations, to all modern history, to the march of intelligence and melioration of politics, who does not see that the uttermost theories of the Virginia school have gained ground beyond, probably, the most sanguine anticipations of the founders of their long peculiar tenets; and that all excessive government is coming to an end. Among the realizations of these changes, the judiciary has rendered itself no longer the sole arbiter of constitutional difficulties. Should they who most anxiously revere and uphold that department regret this change? Will it not save and strengthen the judiciary? Will it not corroborate and perpetuate the Union? The exclusive authority which Madison and the constitutional federalists ascribed to the federal judiciary, to settle the Constitution by judicial construction, has been at least unfortunate in its exercise. The perilous function of invalidating what are deemed unconstitutional laws, is an awful power, said Judge Iredell, in its experiment. The Supreme Court has seldom, if ever, been of one mind in the high function of even repealing a State statute-has never ventured to offer such indignity to an act of Congress. Conflict has produced inconsistency; of consequence the judiciary has failed to convince or satisfy. A tribunal vitally important to the community, for judicial purposes, has suffered in its great usefulness and dignity by gratuitous disparagement; for frequent political or constitutional controversies are not consonant with the judicial office. Why should judges expose the judiciary to the vicissitudes of politics injurious to the judiciary, as a body, fatal to the judicial standing of individuals? A profession and politicians maintaining the exclusive prepotency of the federal judiciary, forget that some of the most elaborate, convincing and accredited decisions of such justly celebrated magistrates as Parsons, Spencer, Thompson, Kent, Kirkpatrick, Tilghman and their learned associates, gentlemen mostly of federal politics, on benches of justice justly venerated-deliberate and able determinations of the Superior Courts of most of the States-have been reversed and annulled, together with State laws affirmed by masterly judgments, in contradictory decisions of seldom, if ever, the whole of the judges of the Supreme Court of the United States widely differing among themselves in every opinion. In a country like ours, so wide spread, so little bound by metropoli tan supremacy, can the learned profession of the law ever be satisfied that Judge Story's arbitrament of a constitutional controversy is of better reliance than that of Parsons, Kent, Tilghman, or Roane? Without intending personal comparison, let any considerate man, let any judicious lawyer contemplate the whole Union, with a broad view to the great result. Will the bar, and suitors, and community believe

that the federal court or judgment cannot but be right, and the State court must be wrong? Is it not too much for general acquiescence, that the judgments of a few however able and unexceptionable magistrates at Washington, shall supersede and suppress those of their equals in learning and reputation throughout the Union, when the latter affirm statutes of their several States? Consider the admirable, the fervid, and the solid argument of Kent and his eminent associates in the steamboat controversy, for instance: can the mind, will it, embrace without hesitation the reverse of such conclusion? Or may it not apprehend that even the same magistrate under metropolitan influences at Washington, might have come to the very federal conclusion which at Albany, with provincial feelings, he most ably demonstrated to be entirely wrong? And will not the effect be to undermine that faith in judicial wisdom, which is so necessary and in this country so prevalent? By grasping at excessive cognizance, judges lose the substance for the shadow. Construction leads to construction; like all other aberration, a first step inevitably produces more. Political jurisdiction must be continually backsliding. The decisions of the Supreme Court from 1812 to 1834, encouraged the bar to stimulate the Court to further excesses, and paralyzed an overstrained power which, moderately exercised, might have proved a permanent and acceptable umpirage. Constitutional jurisprudence, judicial legislation, political construction, are necessarily contradictory and questionable. It is the infirmity of their nature. With republican institutions, such determinations belong mostly to the political sovereignty. The judiciary should never interpose, but in extremity.

Far from denying the power of courts of justice to declare laws void, I approve the examples of Paterson and Chase, asserting it much more extensively and rationally than Marshall or Judge Story; and Johnson's (with whom I believe Judge Thompson agrees, as the late Judge Brackenridge did) denial that the ex post facto interdict of the Constitution is to be confined to criminal law, but extended to all retro-active injustice, by palpably wrong legislation, according to English law, and all law of which the everlasting and unchangeable attributes of morality and honesty are elements, is but a restoration of them to its genuine philosophy. It is by novel experiments, departure from the more talked about than respected wisdom of ancestors, by violation of precedents, and disregard of authorities, and attempting new principles of constructive power, assumed by a department having little or no power but which is conferred on it by legislatures, or derived from precedents, that the American judiciary has brought itself into difficulties and disparagement.

Although it is no part of my task or wish to question judicial power and duty to abrogate statutes, I ask attention to Chief Justice Gibson's very able refutation of Chief Justice Marshall's vindication of that power, by a train of cogent reasoning condemning what he calls dogmas of professional faith, rather than matter of reason; and demonstrating, I conceive, that whatever may be thought of the rule, the reasons alleged for it by Marshall are unsatisfactory. The squandering of judgments by the exercise of an extreme judicial authority (which, to be available in time of need, ought to be hoarded with the utmost economy) and the founding it on false reason, are my objections, rather than the denial of the authority; the practice, not the principle.

After all that has been said of this power, extraordinary it must be admitted, and different from the ordinary jurisdiction prescribed by the judicial oath and office, the

practical result may be that American judges, returning to the principles of those of England, will not act upon the obligation to declare statutes void, whether unconstitutional or not, only when unquestionably violative of constitutional or fundamental prohibitions, and never otherwise. That written constitutions give courts political power over laws, is certainly not to be found in the letter of the judicial commission. Judge Hopkinson says the judges assumed the power; but wherefore more because the supreme law is written than if original, natural or common paramount, but not written? What is radically wrong, courts of justice cannot administer as right, no matter whether unconstitutionally or otherwise radically wrong. Why is it only wrong where contrary to a written constitution? Palpable and flagrant inconsistency between the law of a statute and the law of a constitution, is no more contrary to justice than any other fundamental wrong. Then why is it a judge's duty to adjudge the one wrong but not the other? Judge Thompson and other judges have considered the constitutional guard of private contracts and against ex post facto laws, as but declaratory of the great aboriginal code of moral obligation, forbidding palpable injustice, binding on all courts of law; law before written constitutions and without them; law in every constitution. Chase, who duly appreciated the extremity of judicial political intervention against statutes, mentioned several instances of them to be treated by courts of justice as void, which is doctrine much more consonant with judicial duty and rational jurisdiction, than the re-cision of statutes as contracts by color of collision with a word in written constitutions. Not less than two thousand five hundred American judges, according to Marshall's interpretation of their judicial oaths, and his doctrine of the injunction of written constitutions, are bound to enforce the judicial authority of annulling statutes. This is a great reason for restoring law to what it was before the contract doctrine. For what system, constitution, or country, can bear the constant shock of armies of legislators and judges, five thousand making, and half that number breaking laws perpetually? It is a substantive objection to such axtravagance of judicial prepotency, that every inferior judge (why not every magistrate?) is to be always mounted on this hobby galloping round the zodiac of constitutional jurisprudence, and whether bull, bear, or goat, trampling laws under the hoofs of incapacity, surely more to be deprecated than the popular understanding. So tremendous is this power, and so impracticable, that in near fifty years the federal judiciary has never exercised it on an act of Congress, nor the courts of Pennsylvania on a law of this State. Marshall, in Madison's case, makes no distinction between laws to be adjudged unconstitutional, whether acts of Congress or Assembly. According to him, they are all obnoxious to it. Chase denied the power of the federal judiciary to declare a State law void because inconsistent with the constitution of that State. Chief Justice Gibson thinks that any judge may declare a State law void, if undoubtedly contradictory to the Constitution, laws, or treaties of the United States; but that a judge cannot declare a State law void for inconsistency with the constitution of the State. The whole subject is involved in difficulties; and the clearest position on which unprejudiced reverence of law can rest, is that before cited as the only one in which American judges are agreed, and which never has been and cannot be questioned; that it is an awful power, an extreme power, the revolution power of courts of justice, never to be exercised but in a case beyond all doubt; which principle, together with the practice of conforming to it, restores the English doctrine

stone.

and reconciles the American to it. There may be instances of such indubitable wrong or error by statute laws, as to leave courts of justice no option but to pronounce them void. Tried by this test, the contract doctrine will not bear the least touch of the With great deference, I submit that the latter decisions of the Supreme Court overruling the early doctrines of Paterson and Chase, that laws may be declared void though not unconstitutional, are not well founded. And if the early adoption of one of Blackstone's few mistakes, that ex post facto laws are penal laws only, be likewise corrected by adjudications against all retro-active and otherwise fundamentally false statute laws, whether national or State, the jurisdiction, usefulness, and dignity of the federal judiciary, will be what considerate Americans must wish to see and feel them.

It is not the power I presume to question, but the constructive and extravagant exercise, the abuse of it. Mistaken reason begot a bad rule whose euthanasy need not impair the right. It can hardly be deemed impertinent to anticipate of the lately renovated Supreme Court of the United States, a milder and a better code of constitutional and fundamental jurisdiction. When acts of Assembly are treated as reverentially as acts of Congress, and they are fully entitled to it, that harmony of all, and supreme judicial authority of the federal judiciary, will be reinstated, which it is my constant endeavour to uphold. The empire of law, the sanctity of property, the inviolability of private rights, corporate as well as individual, I contend for. But their preservation depends, I submit, on a temperate exercise of the high offices of judicature, rarely interposing with political jurisprudence, and never adjudging any law to be a mere contract. A sure touchstone for courts will be whether the ground is debateable; for if a judge may repeal a law whenever a lawyer by plausible argument can bring it into even strong doubt, there are many laws to be repealed, and a constitutional protection of private rights will be perverted to the means of creating a council of irresponsible censors, continually employed in frustrating legislation. If the question is debateable, the law should not be adjudged unconstitutional.

An elaborate essay by Judge Hopkinson, in the American Quarterly Review for September, 1827, criticises Chief Justice Gibson's opinion, and entirely disapproves of it, with a show of authorities, which, I think, when examined, do not much affect the reason of either side of this question. Of Judge Hopkinson's sixty-three law cases collected from the judicatures of fourteen States, (all of which I have consulted, as far as the references lead to them-some of the citations not being exact) most are judgments against the doctrine he maintains, although asserting the right to ex ercise it when proper; several of the cases have no reference to the constitutional question, but assert judicial authority generally over statutes fundamentally wrong; a distinction not observed by Judge Hopkinson himself, who dwells on Patersons' celebrated argument as if it were constitutional, while it has nothing to do with the letter of constitutions, much less the contract doctrine; and its fundamental doctrine has been repeatedly overruled by the Supreme Court in adjudications much to be regretted, in which all retro-active and ex post facto injustice is pronounced to be irremediable, however enacted, unless by penal law or impairing the obligation of contracts. After all, therefore, Judge Hopkinson's authorities prove no more than the mere assertion of the alleged judicial right, rarely exercised by some judges, while denied by others; by some the constitutional confounded with the fundamental authority,

and the whole question when treated by statesmen, out of court, determined on the one side or the other, according to their politics. Judge Hopkinson cites Marshall, Morris, Ross, Griswold, and Bayard, with other federalists for the affirmative; and Giles, Breckenridge, of Kentucky, Mason, of Virginia, and Stone, of North Carolina, with other republicans, for the negative; and it is somewhat indicative to remark the learned Judge's disposal of the respective parties; for instance, Mason and Stone offer no reasons, and Giles is a wily politician; whereas Bayard is an accomplished lawyer and able statesman, Griswold gives the great power of his mind to the cause, and so forth. Appreciation of the force of argument and character which depends on the politics of the advocates and the judge, and even on the degree of latitude in which his party sympathies may chance to be formed, will hardly be accepted by history as the verdict of impartial justice. I have said that in my humble opinion, American judges, like those of England, must sometimes, though very seldom, go so far against palpable violations of the original and immutable law of right by statutes, as to be constrained to declare them void.

A well informed foreign lawyer, M. De Tocqueville, in his excellent view of Democracy in America, chapter VI, on the judicial powerin the United States, considers that power competent to annul all retroactive laws, making no distinction between such as are unconstitutionally ex post facto, and others, and declares that this power is recognized by all the authorities; that not a party, not even a man, is to be found who questions it.

But the American constitutional historian, recording results, without opinion of their merits, will declare that while the American judicial power to pronounce statutes void has been for the most part asserted by the judges, yet it has seldom been exercised, and that many statesmen have always denied it; that all asserting it have uniformly acknowledged that it requires an unquestionable case of extreme urgency for such judicial intervention; that some highly respectable, though but few, judges have deemed it their duty to declare statutes void which are manifestly unjust, though not contrary to constitutional provision, but that the Supreme Court of the United States have rejected this principle, confining the jurisdiction to statutes contrary to the letter of a constitution. The same impartial historian must add that in no instance has the Supreme Court of the United States adjudged an act of Congress void, or been unanimous in adjudging that a State law may be annulled as a contract, and that great confusion and uncertainty have followed the enforcement of that contradicted construction, unknown in any other country or age. I think he must add further that, according to English principles, ex post facto laws are not merely penal laws, but all retroactive laws; and, if he gives an opinion, he must regret that American judges, by adopting Blackstone's error to the contrary, have divested the judicial office of its noblest authority. While appearing anxious to enlarge their jurisdiction, they have thrown away its best part.

After so long an excursion into foreign parts, the realms of federal jurisdiction, to shew by monuments, with all respect for constituted authorities, that there is nothing to apprehend from them, from the embers of fire, (to repeat Chancellor Kent's felicitous balm) which do not lie in the way, and indeed have never been lighted at all, or no federal authority sanctions the menace, however often repeated, that bank charters are contracts which the judiciary will guard from revocation by a State-I return to Pennsylvania for the conclusion of my task, trusting that it has been