Jenks's Portland gazette., 1802-05-31


poisiopI that It is the right and the duty Of the
Courts, t6 exercife fueh an authority = repeat
khich. wenl6 fwell this number to an improper
6ze. ~ ~
The eGenee Of The argument is, that every
"a q delegated authority, contrary 70 the
tenes Of the conInifEen under which it Is *
sseiied, is void ebnfequenfly that no legi1s-
tive at, ineonGltent with the conftituSion, can
he valid. That it is not natural preiumptinn
that the confisution intended to make the le-
eiaaiive body the final and executive judges Of
their own powers /; but more rational to fuppoie
that the courts were deligned to be an interme
diats hody between the people and the legila
tufa, in order among other things, to keep the
latter within the bounds aligned 70 its authoti
~. That the Interpretation Of the laws being
the peculiar provice of the courts. and ! con
flitutioh Aeing in iae fundamental law, fups-
rior in Obligation to a 0atute, if the conaiintion
and the Ratuie are az variance, the former ought
to prevail aganR the latter the will OF the
people againif the will of the agents and the
judges cughr in.tbeir quality of interpreters Of
the laws, 10 pronounce and adiudee the truth,
namely, that the unauthorized ltatute is q
uuility. -.s
"Nor CONTINUES the commenta,orS does this
conelu6on by any means fnppofe fnperiorty
of the Judicial to the Iegi1a.ive power. ILonly
fuooof.. sisar tie power OF The people Is fuPeror
30 10Th and that where the will Of the legilla
lure, declared 10 its la,ute, aands in oppoition
to that Of the people declared in the conft,utidn,
the Judges ought to be governed by the latter,
rather than theformer. They ought to regu.
late their decifions by the fundamental laws,
rather than by thoie which are not fundamen-
tai"
/" IF then the Courts Of Juflice are to be con
liiered as the bulwarks of imited contribution,
againa lesifl4iye encroachments, this conGder.
aIion viii afford arong az argument for the per
uanent tenure of Judicial Offices"
But ne propo(iton can be more manifef, than
that this Pernanency of tenure muR be nomi
nal. If made defeafibIe at the epleafure Of the
Legislature, and that il is ridiculous TO con6der
it as an obltacle to encroaehments of the Lcgif
larive Department, if this department. has a
dilcre.ion to vacate or aboiih it diredly or in,
directly.
In securing to the comments which have
been cited, it is not meant to conhder them
as evidence Of any thing but of The views with
which the contribution was framed After all,
the inarument mutt fpeak for itfeIE Yet To
candid minds, the co-temporary explanation OF
il, by men. who had had perfe6e opportunity
of knowing the views of its trainers, NUT ope-
rate as a weighty collateral resfon for believing
the eonaruetion agreeing with this explanation
to be right, rather than the cpPofite one Its
too cardinal point to admit readily the fuPPo-
iition thar there was mifapprehenficn and
whatever motives may have fubfedaeDtly occur
red to bias the impreaions Of the one or the 9th
er of the perfcns alluded to. the Gtuston in
which they wrote, exempts both from the ful.
picion Of an Intention to mifreprefent in this
particular. Indeed eourfe of argument more
accommodating to the objections OF the adver
faries of the Conftitu,ion would probably have
been preferred as moa polite, if the truth. as
conceived at the time, wsuld have permitted
modification Much trouble would have been
avoided Ly faying ss1'be Legislature will have
a complete eontroul over the Judges, by the
discretionary power of reducing the number OF
thofs of the Supreme Court. and OF abolifhinx
the exiting Judges of the Inferior Courts, BY
the abolition of the Courts thsmfelves." But
this pretention is novelty reiersed for the
crooked ingenuity Of after difcoveries.
LUCIUS GRASSES.