tained, as in this state, where it is exemplified by every day's practice.

"The judiciary authority of the Union is to extend :

"Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.

"Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.

"Fourth. To controversies to which the United States shall be a party. These constitute a third of those classes.

Fifth. To controversies between two or more states; between a state and citizens of another state; between citizens of different states. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.

"Sixth. To cases between the citizens of the same state claiming lands under grants of different states. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same state.

"Seventh. To cases between a state and the citizens thereof and foreign states, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation. of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is cal

culated to avoid general mischiefs and to obtain general advantages."

When these luminous expositions of the powers proposed in the Constitution are compared with the debate that took place in the First Congress, when the Judiciary Act of 1789 was passed, it will be seen that the act covered the whole ground which Hamilton had so fully and accurately laid out. The 25th section, which defined the appellate jurisdiction of the Supreme Court, and established the process by which it was to reach the necessary object, and to render the supremacy of the Constitution effectual, proceeded upon the principle that the laws enacted to carry out its powers demanded obedience from individuals, and are not directed against states or communities.

One of the most remarkable illustrations of the exercise by Congress of the power to make the laws which it enacts capable of execution against all state resistance is to be found in the "Force Bill," adopted during the administration of President Jackson, and of which some account has already been given. The celebrated proclamation issued by Jackson to warn the nullifiers to desist from their proceedings contains one of the clearest expositions of the nature of the Constitution that has ever been. made. It shows not only the theory of the Constitution, which the executive branch of the government then meant to uphold, but also that this had been from the first the doctrine on which it had always been administered. It was no new theory, although the circumstances of that period required that it should be distinctly enunciated by the executive.

I have elsewhere given an account of General Jackson's course when a bill to continue in force the charter of the Bank of the United States came before him for his official approval as president. This occurred in 1832, during his first term of office. In his message vetoing the bill he assumed the ground that every public officer who takes an oath to support the Constitution swears to support it as he understands it, and not as it is understood by others; that, holding the original charter of the bank to have been unconstitutional, he, as president, was not bound to sign a bill continuing it in force, notwithstanding the Supreme Court had solemnly decided that the original charter was a perfectly valid law.

A single discrimination will show that on the general principle President Jackson was right, and that in the particular instance he was wrong. It may well be that every official who takes an oath to support the Constitution is bound to interpret it as he understands it; and especially is this true of both branches of the legislative power, one of which is the two houses of Congress, and the other of which is the president. To both of them a decision of the Supreme Court of the United States on a constitutional question commends itself by the weight of its reasoning; but when the same question arises in the course of legislation, those who exercise the functions of legislation must determine for themselves whether they will or will not follow out the views maintained by the court. What the court really decides is that, in a litigated case, the parties whose rights against each other are affected by a provision of the Constitution are bound to accept the interpretation of the Constitution which the court adopts. The decision also becomes a precedent in all future litigated cases in which the same question arises, and all inferior judicial tribunals, federal or state, are bound by it.

But the case on which President Jackson had to act was a peculiar one, and one that seldom arises. He was called upon as president, and therefore as a co-ordinate part of the legislative power, to approve a bill continuing the charter of the Bank of the United States in force for a further term of years. The bank was a party to the case of McCulloch vs. Maryland, and that state was the other party in the litigation. The court decided that the original charter was a constitutionally valid grant. The president was not called upon to decide whether the original charter was valid. He was to decide a narrower question; namely, whether Congress had constitutional power to prolong the charter. The bank was an existing corporation, with great rights of property vested in it under the original charter, which had not yet expired when Congress passed a bill to continue the charter in force for a further period, and sent the bill to the president for his approval. The president, going back to the question whether Congress originally had constitutional power to create the bank, rested his veto of the bill upon the ground that Congress exceeded its constitutional powers when it granted the original charter.

I conceive, therefore, that although the question whether Congress had power to renew the charter, by an extension of the corporate existence of the bank, involved in one aspect its power to grant the original charter, yet that the circumstances of the case did not call for an assertion by the president of his independent power to interpret the Constitution for himself. In general, the president, when called upon to approve of new legisla tion which undertakes to exercise a supposed power of the Constitution, must interpret the Constitution as an independent duty, and must decide for himself whether the power exists. But when the Supreme Court has decided that a charter of incorporation was a valid constitutional grant, and the president is asked to approve a bill continuing the existence of the same corporation, the question for the president wears a different aspect.

The charter of the bank was a law of the land in operation at the time when Congress passed the bill to continue it in force. There is a plain distinction to be observed between the original enactment of law and the enactment of a law continuing or amending it. This distinction was disregarded by President Jackson.'

The peculiar doctrine of President Jackson does not, however, detract from the value and importance of that exposition

In the Life of Webster, I. 417, et seq., I have adverted to this subject, and have made the same discrimination that I have made here. By referring to my former work the reader will learn in what sense Mr. Webster considered a decision of the Supreme Court of the United States to be binding on all other departments of the government. He did not deny that when the question is whether a law is to be passed, all those who have to discharge the functions of legislators must determine for themselves whether Congress has constitutional power to enact it. But when the question is whether a statute which is in force shall be continued for a further period or be amended in any respect, a previous decision of the Supreme Court that the original statute was a constitutional exercise of legislative power has a greater force than the mere weight of the reasoning by which the court upheld it. Mr. Webster pointed out that the same principle of action on which the president, in his legislative capacity, refused to approve a law continuing an existing law in force for a further period, would enable him, in his executive capacity, to refuse to execute a law which he deemed unconstitutional. His oath to faithfully execute the laws would thus be in conflict with his oath to support the Constitution, as the latter was understood by President Jackson. Hamilton, with his usual perspicuity, in No. 78 of The Federalist, adverts to the separate functions of the Supreme Court and to those of the legislative body in interpreting the powers of the Constitution.

of the Constitution which was given in his proclamation against the nullifiers, and which was drawn up by his secretary of state, Edward Livingston, and was substantially the same as that previously maintained in the Senate by Mr. Webster.

When we turn to the views of the nature of the Constitution that have always been held and acted upon by the Supreme Court of the United States, it becomes at once apparent that they have admitted of no place for the doctrine which is implied in the idea of state resistance, or organized resistance of any kind. Beginning with the earliest judicial interpretations of the Constitution, and coming down to the latest, we shall find that they have been uniform and consistent.

When the Supreme Court was composed of Marshall as chiefjustice, Bushrod Washington, Story, and their associates, it became necessary for them to speak positively concerning the nature of the Constitution, because it was then claimed, in the particular controversy which they had to decide, that the Constitution was established by the states in their sovereign capacities. This doctrine was distinctly negatived by the court in the following terms: "The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the government with all the powers which they might deem proper and necessary, to extend or restrain those powers according to their own good pleasure, and to give them permanent and supreme authority."

1

A few years later, Chief-Justice Marshall, speaking for the whole bench, said: "The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised on them, and for their benefit. . . . The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the Constitution, form the supreme law of the land." "

1 Martin vs. Hunter, 1 Wheaton's R., 304. The opinion of the court in this case was delivered by Justice Story.

2 McCulloch vs. the State of Maryland, 4 Wheaton, 316.