and winter and summer are seen side by side, have no power to please us? Or a scene beneath a southern sky, where the palm trees lift their heads in slender magnificence, the forests are alive with birds, and glitter with the splendour of variegated plumage, and earth is gay with all the colours that gain their deep tints under a tropic sun? The eye that communes with nature and understands it, discerns loveliness in all its forms. And shall we, who are certainly not incurious as to the concerns of the world, be indifferent to foreign letters? Must we be so engrossed with the language and concerns of business, that we cannot listen to the language of poetic inspiration? And must we for ever and unceasingly be deafened by the din of congressional rivalries? Is there between the acclamations and rebukes of partisans, and the hot warfare of canvass for office, no happy moment of tranquillity in which learning may raise her head fearlessly and be respected, and the pursuits of contemplative life be cheered by the free expression of general approbation, and quickened into excellence by the benignity of an attentive nation? We cannot as yet be said to have a national literature; but we already have the promise of one, and the first fruits; as the literary character of the country is developed, it should resemble our political institutions in liberality, and welcome excellence from every quarter of the world.

ART. IX.-Reports of Cases adjudged in the Supreme Court of Pennsylvania. By THOMAS SERGEANT and WILLIAM RAWLE Jun. Vol. XII.

In placing a volume of Law Reports at the head of this article, we have no intention of erecting ourselves into a High Court of Appeals, to rejudge the judgments of the Supreme Court of Pennsylvania. The decisions of the tribunals of the law have generally but little interest, except to the parties immediately concerned in them, and to the members of the profession to whom they are to serve as counsellors and guides. In a country like ours, however, where the supreme power is the Law, which is declared and promulgated by courts erected and established by the people, cases will sometimes occur in which the whole community possess a deep and vital interest, and to which they will ever give an anxious and vigilant attention. Such are all those which touch the Constitution, the charter and security of our rights and liberties; under whose protection we walk fearlessly by day, and sleep undisturbed through the night.

The volume before us contains, not indeed the judgment of a court, for such a judgment has never been given by any court, but the opinion of a single judge, upon a subject of the first importance to all our institutions, and to every citizen of our great commonwealth; and which, we thought, was as fixed and immoveable as the foundations of the government. If it be not so, there is nothing settled or certain among us; and the powers apportioned by the people, to various departments, as it has been believed, with sufficient certainty, are yet floating in chaotic confusion and restlessness.

It is now forty years since the Great Convention offered to the people of the United States a form of government, made with infinite deliberation, wisdom, and patriotism. It is now nearly forty years since the people received and adopted this government; under which, from the very hour it went into operation, they have lived "in safety and happiness; they have increased in prosperity and power, beyond all example; they have established justice; ensured domestic tranquillity; provided for the common defence; promoted the general welfare, and secured the blessings of liberty to themselves and their posterity." The powers of this government are distributed among three departments, the legislative, the executive, and the judiciary; which were immediately organized according to the provisions of the Constitution, and have gone on in harmonious co-operation for the "general welfare," to the present hour. Questions have arisen, from time to time, as was expected, respecting the extent and limitations of powers; and were at once settled by a reference to the Constitution and its fundamental principles, acknowledged by all to be the source of their authority. To the people of the United States, it was of the first moment that this instrument should be truly understood and honestly executed. From the known and unavoidable imperfection of language, it would necessarily happen that some parts of it would be liable to doubt. ful constructions, to be developed only by experience; and it must therefore be conceded, that a power was intended to be provided to decide such questions and settle the construction for future cases, or there is a radical imperfection in the system, that must finally destroy it. On any other supposition, these questions would not only remain unsettled, but accumulate; continually embarrassing all the operations of the community with uncertainty and contradiction. The Constitution would be encumbered with numerous irreconcilable interpretations, with no power to decide between them, throwing the whole system into a ruinous confusion; choaking it with insurmountable difficulties, until, finally, the wheels must stop. The great men who formed our government never intended that such should be its fate; that it should be thus strangled by the struggles of its own force

the conflicts of its own powers. One of the most obvious anticipations of interference in the exercise of authority, was between the established provisions of the Constitution, and the Acts which the federal or state legislatures might pass. It must have been foreseen, that sometimes by inadvertence, and sometimes by violent excitements, these legislatures might step beyond their prescribed limits, and encroach upon the enactments and securities of the Constitution. The necessity, therefore, of providing a power to check these invasions, and bring back the usurping department to its proper sphere of action, could not have been overlooked. The actual exercise of this restraining power was soon called for; and it was assumed at once by that branch of the government, in which it had been supposed to be placed by every intelligent expounder of the Constitution; to wit, the Judiciary. It has here remained by universal acquiescence, undisturbed by any serious opposition; although occasionally questioned by a few unknown newspaper politicians and restless theorists, who have attracted no attention, and produced no effect injurious to this claim of the Judiciary. The courts have gone on asserting and exercising, with becoming caution and deference, the right to decide upon the legality and validity of legislative Acts, and the people have sanctioned the right for nearly forty years. It is true, as we have said, and as it ought to be, the Judges have been scrupulously guarded and respectful in the use of this high privilege; they have paid a profound deference to the judgment and will of the representatives of the people; but they have not taken it for granted that they are omnipotent or infallible; and therefore, in clear cases of a departure from the Constitution, they have not hesitated to put them in the right way again. On the other hand, the legislatures, on such occasions, have not failed to conduct themselves with the dignity, good sense, and patriotism, eminently the duty of the representatives of a people deeply and permanently interested in sacredly preserving the palladium of their liberties from violation from any quarter. The legislatures have either repealed the obnoxious Act, or ceased to insist upon it.

In this volume of the "Reports of Cases adjudged in the Supreme Court of Pennsylvania"-in the case of Eckin and others against Raub and others, p. 330-an elaborate argument is delivered by Judge Gibson upon the right of the Court to decide upon the constitutionality of an Act of the legislature of Pennsylvania, which was alleged to be contrary to the Constitution of the United States, and of the state of Pennsylvania. The Judge impeaches this right, or attempts to impose limitations upon it, which would render it of little value. It is our intention to examine the soundness of his argument, with entire respect to him, but with the freedom such a question demands. As the Judge certainly knew his opinion was contrary to all precedent, and

even to his own former judgment, we may regret that he volunteered it in a case which he does not pretend called for it; and in which it is declared by the Chief Justice, that "no constitutional question can arise," on the construction he adopts of the Act in question. Judge Gibson seems also to adopt the construction taken by the Chief Justice, but says, that instead of controverting the other construction, "I will avail myself of it to express an opinion which I have deliberately formed, on the abstract right of the judiciary to declare an unconstitutional Act of the legislature void." On this question the Chief Justice contents himself simply by declaring, "that I adhere to the opinion, which I have frequently expressed, that when a Judge is convinced, beyond doubt, that an Act has been passed in violation of the Constitution, he is bound to declare it void, by his oath, by his duty to the party who brought the cause before him, and to the people."

This essential right, without which our government has no more durability, consistency, or strength, than twenty-five floating and changing bodies shall choose to allow it, being now brought judicially into question, the occasion may be well taken, to give it a full examination, to show on what foundation it rests, and by what authority it is claimed. In undertaking to perform this office, we claim only the humble merit of bringing together the valuable materials prepared by abler hands; and presenting in one view, the vast mass of precedent and reason, by which this vital principle of our system has been maintained and illustrated. This, perhaps, might have been done in the form of a condensed argument; but, as our object is to give the utmost authority and weight to the principle, it seems to us it will be better done in the language of the great men who have sustained it. Before we enter upon this discussion, we cannot suppress the inquiry to what purpose, with what object, has the learned Judge wrought out and published these laboured pages, calculated, so far as they may have any influence, to unsettle a principle so long established-so uniformly and extensively received and acted upon, and so vital to the best interests of the commu nity? We have seen, that the decision of the case before him did not require it; and if it had required it, we may easily show he had no judicial authority, to give such an opinion. Why did he avail himself of a construction of an Act of Assembly, which he does not adopt, to express an opinion on "the abstract right of the judiciary, to declare an unconstitutional Act of the legislature void?" Did he hope, by his single voice, to reclaim all the courts and legislatures, federal and state, from the heresies they had followed for so many years, and on so many occasions? Did he expect to change the whole current of political and judicial opinion on this subject? In works of romance, we read of men who, singly, hewed down giants, routed armies, and over

turned castles and towns-but children no longer credit such tales; and we hardly looked for a similar enterprise in our day.

Although the internal machinery of our system of government is somewhat complicated, and puzzles the eye of a stranger, its general outline and leading features are easily understood. Thirteen states, independent of each other, but alike subjected to a foreign power, united in a common effort, with a common object, to throw off the unjust restraint. This combination, hastily and imperfectly formed, was made to meet the operations and emergencies of a revolution. But when the great work of independence was achieved, and these states desired to continue the Union, so happily begun, it became necessary to establish it on a more extensive and durable foundation. A variety of rights and interests, of great delicacy, were to be adjusted; and a variety of objects of great importance to the general welfare, were to be accomplished. With this magnificent design, "THE PEOPLE of the UNITED STATES" assembled, by their chosen and trusty representatives, "in order to form a more perfect union, to establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty." All this was done in the formation of the Constitution, under which we have advanced in prosperity, power, and happiness, unknown to man before. It must be kept in mind, that this great charter, which, we trust in Heaven, is becoming more valued and dear to us every day, is the act and will of the PEOPLE of the United States, from the moment they solemnly adopted and ratified it. Whatever therefore is done, by the functionaries appointed to carry this government into operation, in the fair execution of the provisions of the instrument-in the honest and just exercise of their powers, is done by the act and will of the people; the particular officer by whom it is done, being, in this respect, but the instrument of the people, by which they exercise the power. When, therefore, any state authority places itself in opposition to this power, it opposes not only the general will of the people of the United States, but of the people of the particular state also; and the legislator of such state deceives himself in supposing that he is doing the will of his constituents, when he violates or disregards any provision of the general government.

It is our intention to show the opinions and reasoning of the best and wisest of our statesmen upon this question; and then to bring forward the various judicial decisions, that, from time to time, in almost every state of the Union, have been made upon it. We shall premise, that the doctrine we contend for, has not grown, for the first time, out of the Federal Constitution; and much less is it the offspring of aristocracy and ambition, or fede