Brief Enquiry into the True Nature and Character of Our Federal Government

A Brief Enquiry into the True Nature and Character of Our Federal Government: Being a Review of Judge Story's Commentaries on the Constitution of the United States
by Abel Parker Upshur

INTRODUCTION BY THE EDITOR.

The author of this volume was considered one of the ablest legal minds in the United States. He studied law under William Wirt, the eminent author of the Life of Patrick Henry, and his practiced profession with great success from 1810 to 1824. After an interval of retirement, he held a high judicial position as Judge of the General Court of Virginia, from 1826 to 1841; at which time he entered Mr. Tyler's Cabinet as Secretary of the Navy. On Mr. Webster's retirement, in the spring of 1843, Judge Upshur succeeded him as Secretary of State. On the 28th of February 1844, the explosion of the great gun ("Peacemaker") on board the steamer Princeton killed this eminent jurist and statesman. His reputation in private life was as spotless as his public fame was exalted and unrivaled.

This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to invalidate the soundness of its reasoning. As a law writer, Judge Story has been regarded as one of the ablest of his school, which was that of the straightest type of "Federalists" of the elder Adams's party. His commentaries are a good deal marred with the peculiar partisan doctrines of that school of politicians; indeed, they may be looked upon as a plea for the severe political principles which ruled the administration of President John Adams.

The Alien and Sedition Laws, which have long since passed into a by-word of reproach, will still find abundant support in Judge Story's Commentaries. He perpetually insisted on construing the Constitution from the standpoint of that small and defeated party in the Federal Convention which wanted to form a government on the model of the English monarchy in everything but the name. This party was powerful in respectability and talents, but weak or few in numbers - and after it was so signally defeated in the Constitutional Convention, it still held on to its monarchical principles, and sought to invest the new government with kingly powers, notwithstanding the Constitution had been constructed upon principles entirely opposite to its doctrine.

In a letter of U. S. Senator John Langdon, of New Hampshire to Samuel Ringgold, of the date of October 10th, 1800, he says: "Mr. Adams certainly expressed himself that he hoped, or expected to see the day when Mr. Taylor, and his friend, Mr. Giles, would be convinced that the people of America would never be happy without a hereditary Chief Magistrate and Senate or at least for life." Mr. Rose, a Senator from Pennsylvania, and a friend of the Adams party, left the table of Mr. Hollines, of Philadelphia, when "the Constitution of the United States" was given as a toast. John Wood, the historian of the time, speaking of the principles of the Federalists, says: "They bestowed unbounded panegyrics upon Alexander Hamilton, because this gentleman acted the part of Prime Minister to the President.

They thought the administration and the government ought to be confounded and identified; that the administration was the government, and the government the administration; and that the people ought to bow in tame submission to its whim and caprice." Writing of Mr. Adams, Jefferson says: "Mr. Adams had originally been a Republican. The glare of royalty and nobility, during his mission in England, had made him believe their fascination to be a necessary ingredient in government. His book on the American Constitution had made known his political bias. He was taken up by the monarchical Federalists in his absence, and was by them, made to believe that the general disposition of our citizens was favorable to monarchy."

Abel P. Upshur

Abel Parker Upshur-born on 17 June 1791 in Northampton County, Va.-was admitted to the Virginia bar in 1810 and practiced law in Richmond. He served in the state House of Delegates from 1812 to 1813 and again from 1825 to 1827. From 1826 until 1841, Upshur was a member of the supreme court of Virginia. In September 1841, Upshur was appointed Secretary of the Navy by President John Tyler. He held that position until 23 July 1843, when he succeeded Daniel Webster as Secretary of State.

On 28 February 1844, Upshur accompanied a party of distinguished persons down the Potomac River in screw steamer Princeton to witness some experiments in firing a new iron gun of unusual size. On the return trip, the gun was fired a third time and exploded, killing Secretary Upshur and five others and wounding several more on board.

Excerpt:

EXTENT AND LIMITS OF THE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES.

We come now to a more particular and detailed examination of the question, "Who is the final judge, or interpreter in constitutional controversies?" The fourth chapter of this division of Judge Story's work is devoted to this inquiry; and the elaborate examination which he has given to the subject, shows that he attached a just importance to it. The conclusion, however, to which he has arrived, leaves still unsettled the most difficult and contested propositions which belong to this part of the Constitution. His conclusion is, that, "in all questions of a judicial nature," the Supreme Court of the United States is the final umpire; and that the States, as well as individuals, are absolutely bound by its decisions. His reasoning upon this part of the subject is not new, and does not strike me as being particularly forcible.

Without deeming it necessary to follow him in the precise order of his argument, I shall endeavor to meet it in all its parts, in the progress of this examination. Its general outline is this: It is within the proper function of the judiciary to interpret the laws; the Constitution is the supreme law, and therefore it is within the proper function of the judiciary to interpret the Constitution; of course, it is the province of the federal judiciary to interpret the Federal Constitution. And as that Constitution, and all laws made in pursuance thereof, are the supreme law of the land, anything in the laws or constitution of any State to the contrary notwithstanding, therefore, the interpretations of that Constitution, as given by the Supreme Court, are obligatory, final and conclusive, upon the people and the States.

Before we enter upon this investigation, it is proper to place the proposition to be discussed in terms somewhat more definite and precise than those which the author has employed. What, then, is meant by "final judge and interpreter?" In the ordinary acceptation of these terms, we should understand by them a tribunal having lawful cognizance of a subject, and from whose decisions there is no appeal. In this view of the question, there can be no difficulty in admitting that the decisions of the Supreme Court are final and conclusive.

Whatever comes within the legitimate cognizance of that tribunal, it has a right to decide, whether it be a question of the law or of the Constitution, and no other tribunal can reverse its decision. The Constitution, which creates the Supreme Court, creates no other court of superior or appellate jurisdiction to it, and, consequently, its decisions are strictly "final." There is no power in the same government to which that court belongs to reverse or control it, nor are there any means therein of resisting its authority. So far, therefore, as the Federal Constitution has provided for the subject at all, the Supreme Court is, beyond question, the final judge or arbiter; and this, too, whether the jurisdiction which it exercises be legitimate or usurped.

The terms "constitutional controversies" are still more indefinite. Every controversy which is submitted to the decision of a judicial tribunal, whether State or federal, necessarily involves the constitutionality of the law under which it arises. If the law be not constitutional, the court cannot enforce it, and, of course, the question whether it be constitutional or not, necessarily arises in every case to which the court is asked to apply it. The very act of enforcing a law presupposes that its constitutionality has been determined. In this sense, every court, whether State or federal, is the "judge or arbiter of constitutional controversies," arising in causes before it and if there be no appeal from its decision, it is the "final" judge or arbiter, in the sense already expressed. Let us now inquire what "constitutional controversies" the federal courts have authority to decide, and how far its decisions are final and conclusive against all the world.