his earnest attention to the Judicial Department, created and upheld by this Constitution.*

THE JUDICIARY.

With regard to some of the other and multifarious objections, which have already been mentioned, I have spoken with diffidence of opinion, but with regard to the judicial system which this Constitution inflicts upon us, I confess that any indication of doubt, or reserve on my part, would be but affectation, and any diffidence of opinion, but hypocrisy. I have had occasion to watch the effects of this branch of the government more closely than either of the others, and ever since the adoption of the Constitution. I have never yet met a man of sense in California, who did not think our judicial system grossly defective. It is not merely erroneous, and dangerous to individual and public rights, but it is an insult to the intelligence of the country. It is a disgrace which Californians ought to be no longer required to endure. Even the judges on the bench, who are men of candor, are forced to admit that it ought to be completely reformed. Indeed, it has already caused a general feeling of disrespect for our courts, and all connected with them. And to me it is amazing that good men, who have been so long in office, have neglected to remove an evil of such sweeping power and destructive influence, as the existing judicial organization of this State. Such terrible and public denunciations as California courts receive from the people, ought never to be indulged, or tolerated, unless they be deserved. But if one half, or one tenth part of what is said against them be deserved, then what language can express the odium which should attach to that man, whose duty it has become to provide redress, but who shall refuse to give his cheerful aid in that behalf.

It is undoubtedly the duty of the statesman to be attentive to the actions and complaints of the people, for in no other way can the disorders of the State be ascertained or remedied. But, sir, we must not look among the people for the location of the disorders which are to be remedied, because in the government itself, and not in the people, all chronic political diseases have their seat. If we find our people repeatedly guilty of "mob

*NOTE. The reader is again besought to keep in mind that all this speech and, of course, all that follows, was delivered over nineteen years ago; that the whole of it was delivered in February, 1856, as first above stated.

law," we must not neglect to observe that the courts of the State have not remained obedient to the laws of the country. If we find our people sometimes suddenly making laws upon the spot to suit their own notions of punishment for certain offenses, we ought also to observe that their courts are addicted to the same thing, and sometimes make laws upon the bench to suit their own notions in certain cases.

If we find our people sometimes denying criminals their legal right to trial by indictment, we ought also to observe that our courts are sometimes denying good and honest citizens their legal right to trial by jury. If we sometimes find our people treating the law with contempt and deciding a case in haste, we ought also to observe that our Supreme Court has sometimes treated laws with contempt and disobedience, which have been passed to regulate the mode of their decisions. If the people have sometimes denied men the right to appeal from their hasty judgments to the courts of law, we ought also to observe that our Supreme Court has denied us all the right of appeal from its hasty judgments to the Supreme Court of the United States, even in such few cases as are expressly authorized by the constitutional and well-settled laws of our country, and by the universal custom of our people ever since the existence of our nation.

Sir, if there be danger to liberty and property whilst the people are addicted to disregarding the laws, what shall be said when the courts themselves are treating them with disobedience? If hundreds, and sometimes thousands of people are to be censured and condemned for mob-law, what are we to say of a Constitution which cannot prevent only two men from executing mob-law in our very court of last resort?

If there be other offenses of which our people are guilty, and to which no allusion has been made, so are there other acts of judicial despotism, perpetrated by the Supreme Court of California, under the protection of this Constitution, upon which I will not dwell. I will not dwell upon the written laws consulted upon and passed by the two or three men in that Court, prior to the last election-for I nowhere allude to the Judge recently elected-which laws are to be found, to-day, in its 45th, 46th, and 47th rules, and which literally and undisguisedly make a law on the important subject of appeals differing in very serious respects from the constitutional laws of this State, duly passed by the Legislature and approved by the Governor, upon the very same subject.

I will not dwell upon the daring decision made by that court upon the very eve of the last general election, which was calculated to disfranchise at least five thousand of the electors of this State; and although, of course, not at all designed or intended to affect the election, still most singularly and excellently well designed to continue the old duality, the old two judges of that court in power. I allude to the decision, or expression of opinion in a made-up case, just previous to the last election, at which two of the justices who made it were not opposing candidates, though on opposing tickets, wherein that tribunal, modestly and from a pure and virtuous sense of duty, decided, or rather expressed the opinion, not only that no courts in this State except the District Courts could naturalize, but also that the Courts of the United States have no such right. An opinion never before avowed by a court which acknowledged the slightest obedience to the laws or Constitution of the Union. An opinon which never can be adopted without utterly repudiating the express laws of our country, which are unquestionably constitutional, and have been steadily followed and obeyed by all the States from the foundation of our national government down to the present time.

Sir, the spectacle presented by such exhibitions as these, of the conduct of the highest constitutional court, the tribunal of last resort in a great State, is, to me, far more terrible and alarming than all the worst demonstrations of popular fury, which the people of this State have ever in any place, or at any time, exhibited. I make these allusions in sorrow and with sincere grief, to think that such things dare to be already so boldly attempted in an American State. God knows I make no allusions to that Court or its conduct from any personal feelings against the individuals who have presided in it for the past four years, or who still preside there. I can candidly and truthfully declare, and I do therefore here avow that I am not actuated by the slightest or most remote personal feeling in this matter. Indeed, as to the mere individuals composing the Court, I do not see that they have anything to do with the defects in the Constitution. And I allude only to the Court and its judges officially. I do not attack them, but their office. I do not allude to their actions, but to the actions of their court.

Sir, we all know that no court has any right whatever to govern us, nor make any laws for us, nor decide for us what is right and necessary. The whole duty of our courts consists in only declaring and applying the law, as they find it. Any other

rule is most dangerous to the rights and liberty of every inhabitant of the country. They have legally no discretion whatever, not one particle. They have no authority to vary the law, even one hair's breadth.

But the Supreme Court of this State seems not to be content with performing only the inferior and obedient duties of a court. It has aspired, it seeks to be something greater than a court. It has grown ambitious, not to do merely what other courts have done, but to do what other courts have never dared to do. "Its appetite has grown by what it has fed upon," until what was but recently two ordinary attorneys at law, have suddenly, without great application and without great legal learning, grown greater and wiser than all the other courts and lawyers of this age, and of all the former ages of our country. It has proved by argument, satisfactory to itself only, that it is greater, wiser, and more learned than the courts of the United States, and of all the other States. It has struck out new paths in judicial duty, hitherto unknown, and supposed to have no existence. It has made new discoveries in judicial powers, which have hitherto been supposed dangerous to liberty, and strictly prohibited from courts. It has not been satisfied to merely aid us in the administration of our laws; it has also become the champion of political heresies. Under the guise of judicial decisions, it takes occasion to disseminate political doctrines which are odious and hateful to the people of this State, and deserve the severest reprobation of every true American citizen. Under the pretense of maintaining the rights of our State, it seems willing to take away some of the most important rights which we enjoy. Infatuated with its capacity to elevate our State, it has actually degraded us below our real position, and has made decisions to prove that we do not enjoy the same rights which are freely conceded to the people of the other States. Attempting to elevate our State sovereignty, it places our State in a false, if not a dangerous, attitude, which we never ought, and God grant that we never may, maintain; because it strikes at the very foundations of the Union.

By the theories of all other American Constitutions, as well as our own, and also by the theory of the English Constitutions, which all our American Constitutions have imitated but republicanized, and therefore, by the fixed laws under which, and with reference to which, the different departments of this government went into operation, its judicial department, as is well known, is inferior in the extent of its powers to either of

the others. It is not inferior in place or degree, for it is coordinate with the others. Nor can it be interfered with by either of the others, as long as it confines itself to its own sphere of humble but highly responsible duties. Where it does not do so, however, its occupants can be punished by the others. But, sir (so true it is, that in all human governments unguarded authority will only beget an appetite for power), we find that our Supreme Court, although practically constituted of only two men, has not remained contented even with the great powers which the Constitution has unguardedly bestowed upon it. It has not remained satisfied with the excessive powers which ought not to have been entrusted with such a court, but has been for the last four years continually grasping after still more power. Not content with the great and responsible duties of a co-ordinate department, it has boldly leaped all the judicial restraints which surround other courts, and stands today not in the mere attitude of the Supreme Court, but actually in the attitude of the supreme power, in this government. Sir, such a position ought to excite universal alarm and condemnation in any government and under any court, however carefully organized. But, when it is assumed by only two common attorneys, and in a mere trio court like that which now constitutes the Supreme Court of California, it ought to be met by other feelings than those indicated by either sneers, smiles, or laughter. It may be that we ought not merely to laugh, nor ridicule, nor trifle with matters of this nature, nor with efforts to do away with such public wrongs. Our people and our press may be wrong in generally treating such official impudence and assumption with mere indifference and contempt. For it assumes the very powers which are only exercised by tyranny itself; and if maintained, it at once reduces this government, in substance and in fact, into a most contemptible oligarchy. Sir, it is amazing how ready we all are to believe in the gross governmental abuses and outrages which exist in other countries, whilst we do not seem to discover those which may be even more oppressive and disgraceful in our own.

Sir, only two men at the other end of this street can twist all our laws about their fingers. They can set themselves up to control and, whenever they please, to defeat, the hundreds of legislators who annually visit these halls, fresh from the people, and anxious to secure for them some measures of relief. And, sir, whilst we who are sent here to make the laws, are busily and studiously accused before the people of being the