nition; because it may be for our national interest, which the president is bound pre-eminently to consult, to promote the dissemination and establishment, at least in our own neighbourhood, of those principles which form the strongest foundations of good government.

But the most accurate and authentic information should be procured of the actual state and prospect of success of such newly erected states, for it would not be justifiable in the president to involve the country in difficulties, merely in support of an abstract principle, if there was not a reasonable prospect of perseverance and success on the part of those who have embarked in the enterprise. The caution of President Monroe in sending commissioners to South America, for the purpose of making inquiries on the spot, in preference to a reliance on vague rumours and partial representations, was highly commendable.

The power of congress on this subject cannot be controlled; they may, if they think proper, acknowledge a small and helpless community, though with a certainty of drawing a war upon our country; but greater circumspection is required from the president, who, not having the constitutional power to declare war, ought ever to abstain from a measure likely to produce it.

Among other incidents arising from foreign relations, it may be noticed that congress, which cannot conveniently be always in session, may devolve on the president, duties that at first view seem to belong only to themselves. It has been decided, that a power given to the president to revive an act relating to foreign intercourse, when certain measures, having a described effect should take place on the part of two foreign nations, was perfectly constitutional. The law thus rendered him the responsible judge of that effect.*

* 7 Cranch, 382.

In case of war breaking out between two or more foreign nations, in which the United States are not bound by treaty to bear a part, it is the duty of the executive to take every precaution for the preservation of their neutrality; and it is a matter of justice, both to those nations and to our own citizens, to manifest such intention in the most public and solemn manner. The disquietude of the belligerent parties is thus obviated, our own citizens are warned of the course it becomes their duty to pursue, and the United States avoid all responsibility for acts committed by the citizens in contravention of the principles of neutrality. It is the office of the legislature to declare war; the duty of the executive, so long as it is practicable to preserve peace.

The proclamation issued in 1792, when the war broke out between England and France, was an example which, in similar cases, deserves to be followed.

The present state of this country in regard to the piratical depredations committed on its commerce, presents another striking feature of difficulty in regard to executive duty.

The wretches who sally out from the ports of a Spanish island, seize the defenceless merchant vessel, and after removing or destroying the cargo, frequently glut their cruelty by the most barbarous destruction of human life, can be effectually suppressed by no exertion, however vigorous, of the marine force under the command of the president. It can only be effected by pursuing them on shore, by assuming, in some degree, the temporary command of a country, in which the local government is either too feeble or too corrupt to punish them. However strongly the voice of humanity and the interests of the country might urge the president to take such energetic but justifiable measures, it would involve him in great responsibility to do so and yet it would be difficult for him wholly to restrain the zeal and indignation of the officers employed on the distant service, or on the other hand, by his own

mere authority, to punish for an act committed from the best motives. If provided by congress with sufficient authority, these difficulties would be removed.

But notwithstanding all efforts to the contrary, we may be involved in war, by misconstructions of his acts, however justly intended and carefully regulated.

In such a case, whether immediate invasion ensues, or strong defensive measures become necessary, it is still the president who is to act on his own judgment, till congress can be convened. In every aspect directly or indirectly connected with foreign nations, his duties are serious, and his responsibility great.

It was happy for this nation that at the time of adopting the Constitution, an individual was selected to preside, whose judgment never failed, and whose firmness never forsook him: whose conduct proved that the excellencies of the Constitution consisted not merely in theory and contemplation, but could be realized in practice; that within its proper sphere no right was unprotected, and no evil unredressed. It ought to satisfy the people if the principles of George Washington's administration are faithfully followed by all his successors.

CHAPTER XXI.

OF THE JUDICIAL POWER.

No form of government is complete unless it be accompanied with a judicial power.

To make laws and to execute them are the two great operations of government; but they cannot be fully and correctly executed unless there is somewhere resident a power to expound and apply them. This power is auxiliary to the executive authority, and in some degree partakes of its nature. But it is also required at times to control the executive, and what it decides to be unlawful, the executive cannot perform. It may also in some degree be said to participate in the legislative power. Its construction of the acts of the legislature is received as binding and conclusive, although it does not prevent the legislature from repairing its own defects, or clearing up its own ambiguities by subsequent laws, operating on subsequent cases. A high function also appertains to the judiciary in the exclusive right to expound the Constitution, and thereby to test the validity of all the acts of the legislature.

To the people at large, therefore, this institution is peculiarly valuable, and ought to be eminently cherished by them. On its firm and independent structure they repose with safety, while they perceive in it a faculty which is only set in motion when applied to, but which when thus brought into action, proceeds

with competent power if required, to correct the error or subdue the oppression of both or either of the two other branches. A Constitution in which there was an omission to provide an adequate judiciary could not be successfully carried into effect; and if instead of being separate and independent, this power were either blended with the other two, or those who administer it were dependent on the will and pleasure of others, its lustre would be tarnished and its utility destroyed.

The Constitution of the United States, therefore, required a judicial power, not as an adjunct, but as a necessary component part. The extraordinary complications of the authority of the United States with that of the several states, which seem at first view to throw so many difficulties in the way, fully prove its necessity. The state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great as to leave out an executive power entirely, and to call on the states alone to enforce the laws of the Union. But it is not inconsistent with this principle that the United States may, whenever it is found expedient, elect to make use of a state tribunal to the same extent as any foreign power may, if it thinks proper to institute suits in the courts of other countries, which is in civil cases only.

The judicial power is general or limited, according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the legislature. It cannot by any terms of language, be made to exceed the legislative power, for such excess would be inconsistent with its nature. If by express words it should, on the other hand, be restrained so as to embrace only a part of the subjects of legsilation, it would impair the integrity of the whole system. The protection which it was intended to afford, in regard to the other branches of government, being confined to parts of their conduct, instead of embracing the whole, would pro