VOLUME FIRST. PART FIRST.
1. Blackstone's Com. page 46. "Sovereignty and Legislature are indeed
convertible terms; one cannot subsist without the other."
THE generality of expression in this passage might lead those who have
not considered with attention the new lights which the American revolution has
spread over the science of politics, to conclude with the learned commentator,
that, "By the sovereign power, is meant the making of laws; and wherever that
power resides, all others must conform to and be directed by it, whatever
appearance the outward form and administration of justice may put on. It being
at any time in the option of the legislature to alter that form and
administration by a new edict or rule, and to put the execution of the laws
into whatever hands it pleases: and all the other powers of the state must obey
the legislative power in the execution of their several functions .... or else
the constitution is at an end."
Before we yield our full assent to this conclusion, we must advert to a
fact, probably truly stated by the learned author at the time he wrote; "That
the original written compact of society had, perhaps, in no instance, been ever
formally expressed, at the first institution of a state."
In governments whose original foundations cannot be traced to the
certain and undeniable criterion of an original written compact .... whose
forms as well as principles are subject to perpetual variation from the
usurpations of the strong, or the concessions of the weak; where tradition
supplies the place of written evidence; where every new construction is in fact
a new edict; and where the fountain of power hath been immemorially transferred
from the people, to the usurpers of their natural rights, our author's
reasoning on this subject will not easily be controverted .... But the American
revolution has formed a new epoch in the history of civil institutions, by
reducing to practice, what, before, had been supposed to exist only in the
visionary speculations of theoretical writers .... The world, for the first
time since the annals of its inhabitants began, saw an original written compact
formed by the free and deliberate voices of individuals disposed to unite in
the same social bonds; thus exhibiting a political phenomenon unknown to former
ages. This memorable precedent was soon followed by the far greater number of
the states in the union, and led the way to that instrument, by which the union
of the confederated states has since been completed, and in which, as we shall
hereafter endeavour to shew, the sovereignty of the people, and the
responsibility of their servants are principles fundamentally, and
unequivocally, established; in which the powers of the several branches of
government are defined, and the excess of them, as well in the
legislature, as in the other branches, finds limits, which cannot
be transgressed without offending against that greater power from whom all
authority, among us, is derived; to wit, the PEOPLE.
To illustrate this by an example. By the constitution of the United
States, the solemn and original compact here referred to, being the act of the
people, and by them declared to be the supreme law of the land, the legislative
powers thereby granted, are vested in a congress, to consist of a senate and
house of representatives. As these powers, on the one hand, are extended to
certain objects, as to lay and collect taxes, duties, &c. so on the other they are clearly limited and
restrained; as that no tax or duty shall be laid on articles exported from any
state .... nor any preference given by any regulation of commerce or revenue to
the ports of one state over those of another, &c. These, and several others, are objects to which the
power of the legislature does not extend; and should congress be so unwise as
to pass an act contrary to these restrictions, the other powers of the state
are not bound to obey the legislative power in the execution of their several
functions, as our author expresses it: but the very reverse is their duty,
being sworn to support the constitution, which unless they do in
opposition to such encroachments, the constitution would indeed be at an
Here then we must resort to a distinction which the institution and
nature of our government has introduced into the western hemisphere; which,
however, can only obtain in governments where power is not usurped but
delegated, and where authority is a trust and not a right .... nor can it ever
be truly ascertained where there is not a written constitution to resort to. A
distinction, nevertheless, which certainly does exist between the indefinite
and unlimited power of the people, in whom the sovereignty of these states,
ultimately, substantially, and unquestionably resides, and the definite powers
of the congress and state legislatures, which are severally limited to certain
and determinate objects, being no more than emanations from the former, where,
and where only, that legislative essence which constitutes sovereignty
can be found.
 Blackstone's Commentaries, p. 49.
 Ibid. 47.
 C.U. S. Alt. 1. § 8
 C. U.S. Art. 1. §. 9.
 The following letter from the judges of the federal
district court of Pennsylvania, to the president of the United States, may
serve to illustrate the principle here contended for: "Sir, to you it
officially belongs to "take care that the laws" of the United States "be
faithfully executed." Before you, therefore, we think it our duty to lay the
sentiments, which on a late painful occasion, governed us, with regard to an
act passed by the legislature of the Union.
The people of the United States have vested in Congress all legislative
powers "granted in the constitution."
They have vested in one supreme court, and in such inferior courts as
the congress shall establish, "the judicial power of the United States"
It is worthy of remark, that in congress the whole legislative
power of the United States is not vested: an important part of that power was
exercised by the people themselves when they "ordained and established the
"This constitution" is "the supreme law of the land." This supreme law
"all judicial officers of the United States are bound, by oath or affirmation,
It is a principle, important to freedom, that, in government, the
judicial should be distinct from, and independent of, the legislative
department. To this important principle, the people of the United States, in
forming their constitution, have manifested the highest regard.
They have placed their judicial power, not in congress, but in "courts."
They have ordained that the "judges" of those courts shall hold their offices
"during good behaviour;" and that "during their continuance in office, their
salaries shall not be diminished."
Congress have lately passed an act, "to regulate" (among other things)
"the claims of invalid pensions."
Upon due consideration, we have been unanimously of opinion, that, under
this act, the circuit court, held for the Pennsylvania district, could not
1. Because the business directed by this act, is not of a judicial
nature; .... it forms no part of the power, vested by the constitution, in the
courts of the United States: the circuit court must consequently have proceeded
without constitutional authority.
2. Because, if upon that business, the court had proceeded, it's
judgments (for it's opinions are it's judgments) might, under the same act,
have been revised and controlled by the legislature, and by an officer in the
executive department, such revision and control we deemed radically
inconsistent with the independence of that judicial power which is vested in
the courts: and consequently, with that important principle, which is so
strictly observed by the constitution of the United States.
These, Sir, are the reasons of our conduct. Be assured that, though it
became necessary, it was far from being pleasant. To be obliged to act contrary
either to the obvious directions of congress, or to a constitutional principle,
in our judgment, equally obvious, excited feelings in us, which we hope never
to experience again. Signed, James Wilson, John Blair, Richard Peters.
Philadelphia, April 18th, 1792. American Museum, Vol. 12. Part 2d. Appendix, 2d
page, 7,8. See also the letter from the judges of the federal district court of
New York, to the president of the United States on the same subject, dated
April 10th, 1792, and signed, by John Jay, chief justice of the United States,
William Cushing, one of the associate judges of the supreme court, and James
Duane, judge of the district court.