The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-01-21

HCRlSCt. .
There is another and still stronger reason
for removing ajudge By Legislative address !;
mean the hdeituat expression of opinions
absurd in themselves, and dangerous TO the
community. know, sir, that shallhcre be
considered as trcading on delicate ground. The
expression of such opinions rs have ment.-
oned can never be deemed a crime or misde-
meanor. The burthen of proof will always
be thrown on the accuSers they must shew
that the opinions however absurd and DANCE
rous, proceeded from corrupt motives, and
you can seldom infer criminality from mere
opinion. Nothing however is clearer to me
than that judge ought to be confronted, and
removed tor arbitrary, and unconstitutional
decisions, although they be perfectly honest
and conscientious. The gentleman from
Wythe, (Mr. Smith) has recited many Opt
mons, for the expression of which Judge
ought to be removed. / will contine myself
to one which many of the federal Judges have
expressed, and which threatens in nv csti-
nation the most serious evils to the United
States. About eight years ago, Judge Els
worth decided that the common law of Eng
land was the law of the United States i'm its
federal capacity, and under that law he de-
prived an American citizen of the right of
repatriation. 1t is said that several other
federal judges have expressed similar opini-
ons. l will not now examine the correctness
of the opinion, but will venture to assert
that when question on it shall be fairly pro-
pounded, nine tenths of the people, and of
the most enlightened part of the community
will declare such position to be stupid and
detestable dogma. Shall it be sail that a go
vernment instituted solely for the regulation
OF the exterior concerns of this country, a
government which has no power but that
which is expressly delegated TO it, rests for its
cnfln nj hay, ,
Shall the rights of the people of America
be deduccd from the impure source of bar
barous law, instead of being drawn from the
ever living fountain of nature Shall the free
people of America allow code cf laws to be
fixed upon them without their own consent
confess, sir, am stongly impressed with
the belief that this opinion is dangerous to
the state sovereignties, and that it tends IT.
resistably to the consolidation of the states,
that for the formal assertion of such an OPT
Mon do not hesitate TO say that any Judge
ought to be removed from his station. We
were told on former occasion by geDtle-
man from Norfolk (Mr. Murdaugh) that if
the judges have expressed such an cnor-
NOUS opinion, it would be easy for Congress
to correct the evil by declaring that the com
mon law vas not the law of the land. What
kind Of RENE. this The constitution has
not adopted this code; congress have not,
and they cannot adopt it; and III YOU be
content to tell the few persons VINO have at
tempted to force it upon us against all prin-
ciple, that their decisions shall DE binding un-
til Congress shall think proper to rescind
them?
We are told, Mr.. Chairman, that there is
no necessity toinCrease the responsibility OF
the Judiciary, because il is the weakest
branch OF the government 1t is said that it
has neither force, nor zUiW and merely pos
sesses Judgment Our experience contra
diets the fact; for our judges have already
attempted to, force whole body OF laws up
on us, and in some instances they have sue
ceeded, and they will probably be still more
successful unless the good sense, and vi
GLANCE of the people prevent them. But
there is another proof of their strength. The
decisions OF courts become nrecedcnts, and
preccdents once established have all the force
OF (dsos an absurd opinion therefore once
delivered not only operates on the individu-
al to whom it is at first applied but becomes
Il general rule, and bears upon the whole
community. There is one subject on which
| the federal Judges may act, in which they
have greater power than the Congress of the
United States. Treason is defined by the
constitution. Congress have no right to va
~ the definition. The judges interpret it,
and their Interpretation becomes the fixed
rule of the country. If their Interpretation
establishes doctrines dangerous to the coun-
try, or destructive to the rights of individu-
ais, 1t Cannot be altered without change In
the constitution. / have no doubt, sir, that
if the volumes Of the English law were care
fully examined, many instances might be
found in which the judges have so complete
ly evaded the law as to have established
rules not only new but unthought by the le-
gislature. These reasons induce me to think
that the streng Ii of the judiciary is consider
able, and that whilst the other branches of
the government are responsible to the peo-
pie, this ought not to be free from all res
possibility.
Enlargement derived from the weakness
OF the judiciary corresponds very badly with
the power which is assigned to them of de-
Gliding oh the Constitutionality of laws. At
one time we are told that it is as weak as an
infant, at another it is represented as the po-
idcal Atlas on which the whole constitution
al universe is to repose. But rely on it, Mr.
Chairman, that whenever the trial as fairy
made, their shoulders will be found too weak
to support the enormous burthen. will say
but little on thus subject since the gentleman
from Wythe has nearly exhausted it, 1t is
said that in a limited constitution it is pecu-
liarly necessary that the judges should inter-
pose between the legislature and the peop, c
toprevent the former from inluring the latter
by infringing the constitution. In other
words, the judges are be the guardians to
whose safe keeping the keys of the constitu-
ton are 70 he entrusted Rtt who will