icy; that the Judiciary is essentially and from its very composition the most competent judge of such questions; that that body's having the decision of these questions, after the passage of laws, is no reason for their not having the decision of them, when the question comes up before their passage, but that there is a manifest injustice in giving them the decision in one case unless in both; and that, by adopting the plan here proposed, we not only get rid of the objections to that of Mr. Randolph, but we also thereby get rid of the necessity of running any risk; and we place every question of constitutionality, however it may come up, in hands acknowledged to be the most competent, and we restore justice and consistency to a very important part of the Constitution.

Taking, for the present, as admitted, that the Supreme Court is more fit to be trusted with the final decision of the constitutionality of a law, is there any reason why that tribunal should not have the decision of that question before the passage of a bill, merely because, if it becomes a law, they can negative it afterward? Is there any reason, because they have the power to negative it finally, that the Executive should have the power to negative it first? I think not.. On the contrary, I think it manifestly unjust, and for this simple reason. In giving such a power to the Executive, you confer upon the minority a right which you deny to the majority, that of appealing in this constitutional controversy to that tribunal, which is acknowledged by all to be the wisest and safest interpreter and protector of the Constitution; or, what is the same thing, you make it optional with the President whether they shall have that appeal.

If the Supreme Court of the United States are fittest to be entrusted with the interpretation of the Constitution as beveen citizen and citizen, it is difficult to see why it is not as ween party and party. If it can be appealed to by the nosity, or by an individual of a minority, to annul a law v supposed to be authorized by the Constitution, has been sanctioned by the Legislature and the y should it not be appealed to by the majority

V

to annul an objection to a law wrongfully supposed to be authorized by the Constitution? If it is the best protector of our negative rights, why not also of our positive rights under the Constitution? Why should it not have the power to enforce a legislative right, as well as to prohibit a legislative wrong? Why not as well to develop and promote the benefits, as to prevent the violation and abuse of the Constitution? Why should it not have a vivifying and fructifying virtue, as well as a merely sanatory? Why should it not be made instrumental in forcing the Constitution to yield its natural and proper fruit, as well as to prevent the grafting on it of that which its nature refuses?

The Constitution was entered into by the people for the accomplishment of certain objects, which could not be effected under the Federal government, and which may fairly be considered as the moving considerations and indefeasible conditions of the compact which it embodies; and if a majority of these, through their representatives, claim by the passage of a bill a supposed benefit, as one of the objects of the Constitution, their right to that benefit becomes as perfect under the Constitution, as that of the minority who are opposed to it, to be protected against it, if it really is not among those objects; and there is a manifest inconsistency and injustice in giving, in this cause between the two, to the minority two appeals, first to the Executive and then to the Judiciary, while the majority have only the right of appeal to the Executive.

Let us suppose, for instance, that one of the objects of the United States really was (as Mr. Madison asserts in the introduction to his report of the debates in the Federal Convention, and as Mr. Randolph of Virginia informed, uncontradicted, the Convention itself, in the speech with which he opened the great subject of their mission,) to acquire the necessary powers, not attainable under the Confederation, for "the counteraction of the commercial regulations of other States;" let us suppose that the majority of the people, by the passage of a bill for a protective tariff, claim the exercise

icy; that the Judiciary is essentially and from its very composition the most competent judge of such questions; that that body's having the decision of these questions, after the passage of laws, is no reason for their not having the decision of them, when the question comes up before their passage, but that there is a manifest injustice in giving them the decision in one case unless in both; and that, by adopting the plan here proposed, we not only get rid of the objections to that of Mr. Randolph, but we also thereby get rid of the necessity of running any risk; and we place every question of constitutionality, however it may come up, in hands acknowledged to be the most competent, and we restore justice and consistency to a very important part of the Constitution.

Taking, for the present, as admitted, that the Supreme Court is more fit to be trusted with the final decision of the constitutionality of a law, is there any reason why that tribunal should not have the decision of that question before the passage of a bill, merely because, if it becomes a law, they can negative it afterward? Is there any reason, because they have the power to negative it finally, that the Executive should have the power to negative it first? I think not. On the contrary, I think it manifestly unjust, and for this simple reason. In giving such a power to the Executive, you confer upon the minority a right which you deny to the majority, that of appealing in this constitutional controversy to that tribunal, which is acknowledged by all to be the wisest and safest interpreter and protector of the Constitution; or, what is the same thing, you make it optional with the President whether they shall have that appeal.

If the Supreme Court of the United States are fittest to be entrusted with the interpretation of the Constitution as between citizen and citizen, it is difficult to see why it is not as between party and party. If it can be appealed to by the minority, or by an individual of a minority, to annul a law wrongfully supposed to be authorized by the Constitution, after that law has been sanctioned by the Legislature and the Executive, why should it not be appealed to by the majority

to annul an objection to a law wrongfully supposed to be authorized by the Constitution? If it is the best protector of our negative rights, why not also of our positive rights under the Constitution? Why should it not have the power to enforce a legislative right, as well as to prohibit a legislative wrong? Why not as well to develop and promote the benefits, as to prevent the violation and abuse of the Constitution? Why should it not have a vivifying and fructifying virtue, as well as a merely sanatory? Why should it not be made instrumental in forcing the Constitution to yield its natural and proper fruit, as well as to prevent the grafting on it of that which its nature refuses?

The Constitution was entered into by the people for the accomplishment of certain objects, which could not be effected under the Federal government, and which may fairly be considered as the moving considerations and indefeasible conditions of the compact which it embodies; and if a majority of these, through their representatives, claim by the passage of a bill a supposed benefit, as one of the objects of the Constitution, their right to that benefit becomes as perfect under the Constitution, as that of the minority who are opposed to it, to be protected against it, if it really is not among those objects; and there is a manifest inconsistency and injustice in giving, in this cause between the two, to the minority two appeals, first to the Executive and then to the Judiciary, while the majority have only the right of appeal to the Executive.

Let us suppose, for instance, that one of the objects of the United States really was (as Mr. Madison asserts in the introduction to his report of the debates in the Federal Convention, and as Mr. Randolph of Virginia informed, uncontradicted, the Convention itself, in the speech with which he opened the great subject of their mission,) to acquire the necessary powers, not attainable under the Confederation, for "the counteraction of the commercial regulations of other States;" let us suppose that the majority of the people, by the passage of a bill for a protective tariff, claim the exercise

from it by an impeachment? I see no other, except a revolution, a separation of the States, or a new convention for the purpose of altering the Constitution.

With a President so honestly and obstinately fixed in his purposes, with a character so impracticable as Mr. Tyler, there is no other way by which they can get out of this dilemma, until his term of office expires. With our Constitution, some such provision, some such power of removal is much more necessary than in England, where there are various ways of putting the departments of government in that state of harmony which is necessary for carrying on the government. Had Mr. Tyler been prime minister of England, if the King had not removed him, his colleagues would all have deserted him. No one would act with such a man in a country, in which there was any mode of getting rid of him. The Commons might have moved for his removal; and if the King should adhere to his minister, a new election would either bring in a Parliament in harmony with the King and his minister, or the King would have to submit to the new Parliament. But in this country, when such a disagreement takes place, both parties being determined to adhere to their opinions, one from obstinacy, and the other from principle, nothing but the expiration of his term or an impeachment, a revolution or a convention, can put an end to the perfect and entire cessation of all govermental action.

We are told that this would be too severe a punishment for Mr. Tyler, that he has acted to the best of his conscience and judgment, and that, after all, it is but an error of judgment. But in a statesman, in a public servant, it is not always the criminality of the act which is the motive of punishment, but sometimes a necessity of state. In such stations incapacity, or misconception, is often as much a crime, as much a misdemeanor as conspiracy, and an unintended usurpation as a criminal one.

It is crime enough that Mr. Tyler, by arbitrarily encroaching upon the legislative department, and by making their sub