night judges" appointed by the Federalist President, John Adams, on the last night of his presidential term. Madison was Jefferson's Secretary of State. When Jefferson came into office March 4, 1801, on the desk in the office of his Secretary of State was found Marbury's commission, appointing him Justice of the Peace in the District of Columbia. The President had appointed him; the Senate had confirmed him, and the commission had been in due form signed and sealed. Jefferson directed Madison not to deliver the commission. Marbury, in order to secure the commission and properly qualify for office, applied to the Supreme Court for a writ of mandamus to compel Madison to deliver the commission. The Court decided, through Chief Justice Marshall, that Marbury was entitled to his commission and that it was clearly Madison's duty to deliver it, and that while a lower court, if applied to, might issue a mandamus to compel its delivery as a purely ministerial act, the Supreme Court had no authority to do so. The President disregarded the decision and his legal duty as defined by it, and he claimed that the Judiciary had no power to control the Executive. Jefferson asserted that nothing in the Constitution had given to the Judiciary a right to decide for the Executive more than to the Executive to decide for the Judiciary. "Both magistracies are equally independent in the spheres of action assigned to them. The Constitution meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Executive and the Legislative also in their spheres, would make the Judiciary a despotic branch." Jefferson on 'Letter to Mrs. Adams, Sept. 11, 1804. Jefferson was here upholding a pardon which he had granted to a man convicted under the Sedition Law, The Presidency ΤΟΙ It is well known that Jefferson would not consent that the Judiciary should be the ultimate arbiter of all constitutional questions; while to allow the judges to determine the scope of authority, for the other departments would be, as Jefferson thought, a very dangerous doctrine, and would lay all things at the feet of the Judiciary. That each department was to be co-ordinate and cosovereign in the interpretation of the Constitution for itself in its own action, was also shown in the conduct of Jackson. Jackson Vindicates dependence. In 1832, when the bill rechartering the Executive InSecond United States Bank was passed, President Jackson vetoed the bill, giving, as one of his main objections, that it was unconstitutional. The bank had been in existence for many years, and this bill for a new charter did not alter the constitution of the bank in any material respect. The constitutionality of the law under which the bank was existing had been tested in the United States Supreme Court. In 1819, in the celebrated case of McCulloch vs. Maryland, the Court unanimously decided that the law was constitutional. In 1824, in another case, this decision was reaffirmed by the same Court. President Jackson, however, did not feel bound by these decisions, and he insisted that the Executive, like each of the other departments, was to be its own judge on constitutional questions that came within its particular sphere of action. In his Bank veto message he said: "It is maintained by the advocates of the Bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. this conclusion I cannot assent. Mere precedent is a danger on the ground that the law was unconstitutional. See also Jefferson to Jarvis, Works, vol. vii., p. 177; Jefferson to Thomas Ritchie, Dec. 25, ous source of authority and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. . . . If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others." Executive by the Opinion of In 1841, President Tyler's veto of a new Bank Bill again brought up this question. Mr. Buchanan, afterwards President, then a member of the House, Independence in defending his vote against the bill and in is Sustained favor of Tyler's veto, endorsed Jackson's position. He held the legislator to be as independent of the Court as the President. Though all the judges in the country had decided in favor of the Bank, when the question was brought home to him as a legislator bound to vote for or against a new charter, on his oath to support the Constitution, Buchanan held that he would have to exercise his own judgment; if the arguments and opinions of the judges failed to convince him that the law was constitutional, he held that he would be guilty of perjury if he voted in its favor. In June, 1854, Charles Sumner was bitterly assailed in the United States Senate by pro-slavery Senators for having indicated that he would not help to en And of force the Fugitive Slave Law of 1850, which he deemed unconstitutional. The constitutionality of the law, or a similar one, had been upheld by the Court. Sumner was charged with violating his oath to support the Constitution of the United States. In his speech in reply to his assailants, after quoting Jackson and Buchanan as good Democratic authority, Sumner said: "I have sworn to support the Constitution as I understand it, and not as it is understood by others. Does any Senator here dissent from this rule? At all events, I accept the rule as just and reasonable,-in harmony, too, with that liberty which scorns passive obedience, and asserts the inestimable right of private judgment whether in religion or politics. In swearing to support the Constitution at your desk, Mr. President, I did not swear to support it as you understand it. I swore to support the Constitution as I understand it, not more, not less.' And of Lincoln. Lincoln's words are to the same effect. In his debates with Douglas in 1858, he quoted Jackson with approval, and he gave notice that he regarded the Dred Scott decision as erroneous; and while no resistance should be offered to it as the law in the particular case decided, yet Lincoln denied that the country should feel bound by it as a precedent; both he and Seward charged the President and the Chief Justice with collusion, and there is no doubt that, as President, Lincoln would have refused to be bound by the Supreme Court's decision; that he would have continued to assert the power of Congress, and he would have used all the powers of the Presidency, to prohibit slavery in the Territories, in opposition to the Court. Webster's View of Executive Dependence Webster held a somewhat different view. While speaking in party opposition to Jackson's veto of the Bank Bill, Webster asserted that a decision of the Supreme Court of the United States was binding on all other departments of the Government. When the question is whether the law is to be passed, the legislator and the President must determine for themselves whether Congress has constitutional power. But when the question force shall be continued is whether a statute which is in on Judicial Opinion. or amended, a previous decision of the Supreme Court that the original statute was constitutional 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 would enable him, in his executive capacity, to refuse to execute a law which he deemed unconstitutional.' Webster said: "The President is as much bound by the law as any private citizen, and can no more contest its validity than any private citizen. . The President may say a law is unconstitutional, but he is not the judge. Who is to decide that question? The Judiciary alone possesses this unquestionable and hitherto unquestioned right. The Judiciary is the constitutional tribunal of appeal for the citizen against both Congress and the President, in regard to the constitutionality of laws. If we depart from the observance of these salutary principles the executive power becomes at once purely despotic." No doubt Jefferson and Jackson, Sumner and Lincoln, were right in their view that a President must judge for himself as to his constitutional duty, and that he has a perfect right to refuse his sanction to a bill on constitutional grounds, though such a bill has previously been held to be constitutional by the Supreme Court. On this point Judge Cooley says: "It has been claimed, however, that when the point of constitutional law which the case presents is one which has previously received judicial examination and decision, the President may not rightfully disregard this decision and base his negative on his own opinion opposed to that of the Judiciary. Cooley on the "That the President has a discretionary power to veto a bill for any reason that appears to him sufficient is undoubted. 'See Curtis, G. T., Constitutional History of the United States, vol. ii., p. 70; G. T. Curtis's Life of Webster, vol. i., p. 417; Hamilton, in No. 78 of the Federalist. |