direct cause of all the evils of the country, our laws are handled like wax, and our statutes like.dough, in the judicial fingers of the Court. They cannot be enjoyed and administered as the whole of us in both these halls, or as we and our successors may constitutionally determine to be best for the country, unless it shall please the Court to concede to us that privilege. Under the insidious pretense that we have no right to interfere with their "department of the government," they hold us actually in subjection to their own wills and judicial pleasure. And we see that two men, two ordinary lawyers, can sit demurely, at the other end of this city, and nullify, with complete practical impunity, the constitutional rights and laws of the people as often as it suits their pleasure, and they acquire or make the opportunity so to do. And yet we see no very great evils; we see no great necessity for immediate constitutional reforms, and we seem to think it strange that order is not maintained; that our laws are not well administered; that our Courts are not respected, and that our people have been so frequently guilty of taking the laws into their own hands, without respect, and in open defiance of legally constituted courts and judges. Sir, in what form is actual tyranny to come amongst us, in order that we may be certain of its presence? Must it come with armies and banners? Can it never be seen until it comes with a crown upon its head and a scepter in its hand? Our fathers scented tyranny in the very air that passed away from official wrongs. Are we already growing dull and inattentive to its approaches? Or do we suppose that it actually cannot exist among men who are in the acknowledged enjoyment of liberty? Sir, we cannot be so ignorant as to believe that tyranny is confined to actual despotisms, or restrained within the jurisdictions of kings and emperors. We know that it may exist wherever mankind is to be found. That its existence in Republics can only be repressed by "eternal vigilance." That it is not a thing which can ever be extinguished by any one effort of a people. It may be cut down and every vestige of it be destroyed by a revolution, but it cannot be annihilated. It will grow again. It will take root from nothing. Its seeds are scattered more widely and dangerously among freemen than among slaves, for its seat is in the human mind, and it lives wherever selfish ambition attains to power. Perhaps no man, not truly great and sublimely christian, has ever been entrusted with supreme powers in a government and left comparatively free from res ponsibility, who has not felt his power, and grown into the practices of tyranny. It is but the history of mankind in every country, and in every age. And I cannot understand why we should conclude, that at this time, and here in California, no such practices can, or do, actually exist. There can be no dangerous tyranny in our Legislature, for it is annually dissolved and re-formed again from the people. Nor can there well be tyranny under the executive department of this government, for its offices are of short duration, and numerously constituted, and their duties merely executive, not creative, nor undefined. But, sir, the head of the judicial department of this government has become, in my judgment, a tyranny. And if we really wish to learn what tyranny is, and what petty tyrants can do, and dare do, in a Republic, we need only watch attentively their so called judicial career. Sir, no tyranny can be so dangerous to freemen, as that which conceals its intentions behind the sacred ermine of their courts. Indeed, of all tyrannies, none could possibly be better calculated to deprive freemen of their rights, than that which steals upon them in the very garb of justice. Courts of justice can spin their strong and insidious webs in secret, and roll men up, and bind them hand and foot, in the strong and inextricable meshes of their judicial orders and decrees, whilst the people cannot perceive the wrong, and the injured can only buzz, and struggle, and wonder how such things can be. And thus, in their own courts, and here in this State, the people and their laws are continually caught in the mischievous and unseen cobwebs of judicial law, spun by the one or two judicial spiders who watch within, and who sit there, not as if for the plain, straight-forward purpose of administering simple justice, but rather as if aiding a surrounding family in securing the means of a fine support. Mr. Justice Blackstone, the renowned English Jurist, and "the father of our common law," declares in his commentaries, which must be familiar to you all, that "to set the judicial power above that of the legislative, would be subversive of all government." And certainly, no proposition can be more selfevident, to reflecting men. Chief Justice Marshall, perhaps the greatest Judge and most profound reasoner, on the constitutional powers of our courts, who ever sat upon a bench in America; himself the head of the highest judicial department in the United States, and, of course, unwilling to surrender any of the powers or rights properly belonging to his court, has expressed his views upon this subject, and the views which have always been maintained by the great Court over which he so long presided, in these remarkable words: Courts When "The judicial department," (he said in delivering the opinion of his Court,) "is the instrument employed by the government, in administering the laws. The judicial department of the government has no will in any case. Judicial power, as contra-distingished from the power of the laws, HAS NO EXISTENCE. are mere instruments of the law, and CAN WILL NOTHING. they are said to exercise a discretion it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; but always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law." (Osborne v. U. S. Bank, 9 Wheat., 866.) Sir, I would be the last to deprive our courts of any of their proper, legitimate, and constitutional powers. But it is as impolitic to uphold a constitution which lends them facilities for assuming and exercising new powers, as it would be to attempt to deprive them of any part of the legitimate power which they already properly and legitimately possess. But it seems to me that no proposition can be more true than that the courts of this State have no authority to upset any of the old and settled laws of the country, which have been established by unvarying custom, and affirmed by competent authority, nor to make laws in opposition to, or differing in the least from the constitutional laws passed by the Legislature; nor in any manner, nor under any pretense, to disregard, evade, or misconstrue any law whatever passed by the Legislature, unless it be clearly, and beyond all reasonable question, contrary to the Constitution of the United States or of this State. Any other doctrine makes the mere judge a legislator, and introduces at once a confusion of laws, and the reign of that most plain and palpable tyranny which we, here in California, so patiently endure. I mean the tyranny of being subjected to laws, whilst it is not in our power to know what they are, or how, or in what manner, or to what extent they will be applied and enforced. Sir, I feel confident that no intelligent and thinking man can tread the soil of California to-day, without the feeling that it is oppressed; and that justice, as administered in all the other States of our country, is not administered here. But, sir, let us cease attending to the dangerous conduct of our Supreme Court, and ascertain if the cause of such conduct be not fairly and clearly attributable to its dangerous and trifling organization. Because, if the Court is so organized that such conduct would not be likely to be repeated at any future time by a change of its officers, then all the abuses to which we have alluded would not be owing to the constitutional organization of the Court, but only to the people themselves, for electing unsuitable men to perform its great office. Sir, the Constitution of the United States does not necessarily form a wise and complete model to be followed by the individual States, in the formation of their constitutions; because, the chief objects sought to be attained by that instrument the individual States have no control over. They have surrendered them up to the Union. But still, the division of powers in the national Constitution, and the manner in which that division is made, and the theory which forms a part of each, and is briefly outlined in them-all must admit to be, perhaps, the acme of political wisdom. The theory upon which such division is based did not originate with the framers of our national Constitution. Angels from heaven could not give sudden birth to so much political wisdom. It was the result of seven hundred years of English progress and English experience. But neither by the English nor the American Constitutions is the number of judges to compose the Supreme or inferior courts limited and confined to such trifling numbers as with us, nor to any particular number. The legislative department is so organized as to reflect fairly and fully the public necessities, and to that department is left the power of increasing the number from time to time, as the public interests and security against judicial usurpations might require. The English Government, however, secures itself against judicial usurpations by never allowing its courts to question the acts of the legislative branch of the Government for any purpose or under any pretense, and by retaining the supreme head of the judicial power in the upper branch of its legislature. We shall notice presently, how carefully the government of the United States has secured itself against judicial usurpation. The American Constitution does not contain any clause or article, declaring the government divided into three separate departments, neither of which shall interfere with the duties. properly belonging to the other, as is contained in the Constitution of Iowa and this, and some of the other States, a provis ion which is unnecessary, and (as we have learned by our California experience), is liable to be completely misapprehended and dangerously construed. But it contents itself by simply establishing separately, the three powers in the government which actual experience has proved to be necessary in all free, constitutions. Because we see plainly, that if one body of the government were allowed to make laws, and then to construe and execute them, there would not exist the necessary checks or restraints to prevent such body from governing the country as it saw fit. And that when once entrusted with such power there would be no legal mode of getting rid of it (except by constitutional change), however oppressive or obnoxious it might become. It is also equally apparent, that if either two of the three apparently natural divisions of government were entrusted to one body, it would become almost equally objectionable, because if one body were allowed to make the laws and execute them, or to make and construe them (as our Supreme Court has done), in either case the power would almost inevitably lead to gross abuses. Therefore it has been found the acme of political wisdom to create the powers separately, and endow the first with authority to make the laws, the second with authority to execute them, and the third with authority simply to declare them, and announce what they truly are, whenever questions arise, in the transactions of life, as to their real meaning, or as to their having been properly passed or properly obeyed, or properly executed. In all this I am only re-stating what is perfectly familiar to Senators. But it will serve to recall to their recollection the necessity there is for so constituting these several departments, as to render it absolutely certain that each one of them will contain as many checks upon its action as will be at all consistent with its efficiency. For a constitutional government, it will be remembered, is a government of checks and directions from beginning to end. And in proportion as these checks are removed from any of its departments, and the mere individuals who must be placed in them, are allowed to exercise their own judgment and discretion, just so far does our government depart from the grand object sought for in constitutions, that is a government of laws, and not of mere individuals or individual notions or opinions, however conspicuously obtruded, or plausibly argued. But although all these three separate and distinct departments seem to be indispensably necessary in a good constitu |