commences with the date of the grant.  This principle is certainly liable to abuse, but where there was a suspicion of abuse I presume the government would depart from it.  Admitting the office to pass by the commission, and the acceptance to relate to its date, it then does not appear very incorrect, in the case of a commission for the office of a circuit judge, granted to a district judge, as the acceptance of the commission 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 they are friendly to the existence of the States; that they are the friends of federative, but the enemies of a consolidated general government, and yet, sir, to accomplish a paltry object, they are willing to settle a principle which, beyond all doubt, would eventually plant a consolidated government, with unlimited power, upon the ruins of the State governments.