mission for the former office relates to the date of the
commission, to consider the latter office as vacant from the same
time. The offices are incompatible. You cannot suppose the same
person in both offices at the same time. From the moment,
therefore, that you consider the office of circuit judge as filled
by a person who holds the commission of district judge, you must
consider the office of district judge as vacated. The grant is
contingent. If the contingency happen, the office vests from the
date of the commission; if the contingency does not happen, the
grant is void. If this reasoning be sound, it was not irregular, in
the late administration, after granting a commission to a district
judge, for the place of a circuit judge, to make a grant of the
office of the district judge, upon the contingency of his accepting
the office of circuit judge.

The legislative power of the government is not absolute, but
limited. If it be doubtful whether the legislature can do what the
constitution does not explicitly authorize, yet there can be no
question, that they cannot do what the constitution expressly
prohibits. To maintain, therefore, the constitution, the judges are
a check upon the legislature. The doctrine, I know, is denied, and
it is, therefore, incumbent upon me to show that it is sound. It
was once thought by gentlemen, who now deny the principle, that the
safety of the citizen and of the States rested upon the power of the
judges to declare an unconstitutional law void. How vain is a paper
restriction if it confers neither power nor right. Of what
importance is it to say, Congress are prohibited from doing certain
acts, if no legitimate authority exists in the country to decide
whether an act done is a prohibited act? Do gentlemen perceive the
consequences which would follow from establishing the principle,
that Congress have the exclusive right to decide upon their own
powers? This principle admitted, does any constitution remain?
Does not the power of the legislature become absolute and
omnipotent? Can you talk to them of transgressing their powers,
when no one has a right to judge of those powers but themselves?
They do what is not authorized, they do what is inhibited, nay, at
every step, they trample the constitution under foot; yet their acts
are lawful and binding, and it is treason to resist them. How ill,
sir, do the doctrines and professions of these gentlemen agree.
They tell us th