Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1808-01-26
[12 IL Gents .S;a.gls.]

? was question of law, and that the Jury
" are to decide IA ali criminal eases both the
{" law and the facts" In Criminal case
= the court may or may not instruct the Jury
as TO the law and If they do, the jury may,
: or may nor, observe their inStructions.---
To my mind it is clear that ifa court can,
10 criminal case, compare the constitu-
ton and an act of congress, decide that
thc act of congress is void, and INSTRUCT
the jury il is not law the jury have a
right, without those Instructions, to decide
1t is not law. The Instructions of the court
Cannot enlarge the power of the jury. III
7yith the courts Instructions they may dis
regard the acts OF congress, TvIthout the
courts instructions they may disregard il.
They are 10 decide what the law is,
and what the facts are, and in deciding
what the law Is, their power ~ co4exteusive
1 with that of, the court. Hut Judge Chase
lrepeled the claim made On the part of the
Jury. He said it had direct tendency to
dissolve the union Ii seems to me that If
1t had such tendency, to make the claim
on the part of all the courts has the same
tendency. For it might equally happen
that the same law of congress might be res>
Ipec ted and enforced in one part of the ma.
tion, and declared void in another. From
this Case it seems that altho' the federal
Judges are disposed 10 usurp power sor
themselves, they are not disposed to enlarge
the powers of juries.
| In order to determine whether the iddg-
es have right to declare void acts OF con-
1 gress as being unconstitutional, we must en-.
qure what kind o. power this 10. And
if we find it is judicial power, we may
conclude il belongs TO the court but il IL
is a legislative power, we may conclude it
belongs to Congress For by the constitute
ton all Legislative power therein granted is
lin he eNP-Cican nv f.-tf 20. In
qualified negative OF the president, atone;
who thereby obtains a share in the legisa-
6 lure: The judicial power is granted to
the courts, aud the executive power TO the
Ipresident. When it appears whether r.
certain act. IS an exercise Of legislative,
lexecutive, or Judicial power, it also app
pears what department of the government
may perform II. Thus III the case of Jona-
| than Robbins it was argued by Mr.. Mar
shall in a Justly celebrated speech, that ne
having been demanded under jays treaty,
delivering him up was an exercise of exec
utive power, and therefore the Pesidepe
had a right to perform il.
| Legislative power consists in declaring
what The law shall be; executive powerin
carryingthe law into effect; judicial power.
in applying the law to particular asses. To
make laws, is the province OF the legisla-
tire. To determine Controversies, accor-
|
vince of the Judiciary. To determine wnar
laws may or shall be made, is AZ exercise
OF legislative discretion.
| II to dete rhine What laws NAV constitnti.
onally be passed, is ulicial power, then
| congress cannot exercise it; consequently.
! Congress cannot determine what laws to
pass. IF they cannot determine how to je-
gslatc, they are incompetent TO leeislate.
! iti essential 70 the power of legislation
! that the legislature Shcu.d be able 10 de-
termine in what manner 10 JeyisIatr-
Then as all the legislative power conferred
! by the constitution, IS vested in Congress,
1t seems TO me, they possess the rights me-
cessary TO its exercise; and that they pos
seSs right to determine what acts NAV
constitu'ionally be passed. And for the ex-
ercise OF sound legislative discretion
therein. they are responsible to their con-
sttuents.
Then, Vt TO determine whether n DroDo-
sed rule shall be law or not, is an exercise
/ OF legislative power, the judges, when thew
say an act of Congress shall NOT become q
law, exercise legislative discretion, A dis
erection which the constitution has not con-
terred ON them; and which must produce
consequences the people never intended to
produce.
conceive, sir, az in legislative body
Consisting ofdifIerenl branches, each branch
may Judge OF its privileges so IN the gene
raj government, each department may ex-
ercIse It's own powers, subject ONLY Go the
control ofthosc who elected them. The err
!rors OF any branch Of government can only
lbc corrected by those who arc constitution.
Tally their superiors Who corrccts iudici-
Ial errors OF an inferior court Their supe.
riors, the supreme court. Who shall cor
rect the legislative errors Of CONGRESS ?
Their >uperiors, their constituents. Could
1t be the intention Of the American pecple
to vest IN Judges whom the President should
choose, who would hold their Offices for lie.
and who would neither be- elected bv. mr.
responsible to the people, power to con-
troll the legislative and executive Is il no.
reasonable to suppose they would prefer
lreserving the power 10 control Congress
and the President to themselves? Is the
power to declare void the act. Of Congress-
expressly given by the constitution il il
not. IL is an assumption of power by i'm.
lfhcdhon But the power is too great and
unreasonable to be suffered to pass bv i'm.
lplcation. Those who assume il sect q
power above the law; A power which des-
lpots only possesg A power granted to iud,-
eS no where and ouphf 49, -, l.. >