The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-01-26

posed extent, on the legislature Without sub
jecting them TO the influence of all these pas
sioIs and prciud!ceS. which may govern the
k.tter. You carRot make them thus dSpcn-
dent, without abridgiug that freedom OF de-
cisiop which is an indispensable ingredient,
in thecharacter Of an able and upright Judge.
An able write: has somewhere remarked
that =" q controut over mans subsistence a
mounts 70 a cont roul over his will" When
the legislature is enabled to GUST Judge of his
Office without trial, without even reasonable
cause: ! ask whether controul is not given
not only over the subsistence, but even over
that which may be more estimabc, the
character OF the iudgc9 Is it to be expected
that there will be freedom of decision where
the people whose ned the Judge depends
are arrayed on one side and weak and mi
serablc cuiprt rendered universally obnoxi-
GUS ON the ether! Is it to be hoped that I'M
der such circumstances the lettering Judge
will occupy aneutrai and impartial ground
Yet these are the occasions on which the firm
ness OF the Judge is most desirable Permit
me to reCur to case of recent date occurring
within these walls, which has been frequent
ly limited at during this debate. An iniivi-
dual loaded with public execration was ar
raigned at the bar OF justice.-His case was
to be decided BY the law. Whatever our
private sentiments as to the guilt of the ac-
cuscd, all win concur that he should have
been tried by the laws of his country, and if
those laws comprehendcd not his case, he
should have been acquitted. Yet, sir, great
must have been the firmncSs Of that Judge
who would have dared to have acquitted him,
ifhe had been liable, the next moment, to
have been precipitated from his seat for de-
hvering the sentence. Again, if this amend
ment had ben eugrafted into the constitute
on at the time of that trial, it is to be apprc-
hended that for the decision which was pro-
noupcetl, the Judge who presided ,aight have
been dcprivedof his office. And sir, although
am one of those who doubt the correctness
az that sentence, vet ] am not prepared TO ex-
pose It's errors. And should blush Tor nv
coantrg ifundSr the supposed circumstances,
aneVent. such as have suggested, should have
taken place, when postert9 on cool rcilccti-
on and mere deliberate consideration might
pronounce the judgement corrsct. Such a
clrcrT0etance Wouia We dcplOred--wiil be
deprecated b. every one. Let us then avert
the evil from? tle accused the iul,ec and the
people, by maintaining the independence OF
ths bench. If there must be an amendment,
Let Z be such rs viii exempt the Judiciary as
NcH from h2pe Is fear. Take away the pow
81 - tlt tiaIi, rather than give that OF de-
grading them.
But there are ether evils to be appre-
hendcd from this amendment. case NAV
occur IN which the judges may be called on
- SN>1'I- pSSNFCt-'a VIC people ana ltClr re-
presentativcs. They may be required to
decide on the consritutionaity Of a law
irHe the gentleman from Wythe denies to
them this right. He contends that when
law ,Ias passed the constitutional forms, that
is. had the concurrence OF the two Houses
{! Congress and been approved by the Pre-
sidcht, II Is or as Ii gh authority and as bind
ing as the constitution Itself. How then can
tho constitution be said TO define and Drc-
. scrftSe tho LIMITS Of no -, E
g1vernpent--lf "a law which is made BY two
o. them, altho' it transcendS those limits
Is yet OF rs high authority and obligation
1t seems to me that if this be true, the con-
stiritioa is an idle scrpt--a mere name
There must be power lodged some where
to point out, TO designate the powers of Con-
gresS-So bring it within the control, the
boundary of the constitution ard to me il
aceDst that this power can no where be so
safely reposed as with the Judiciary. Shall
the power that enacts, be the'tribunal to de-
eide the validity of law? You will not
deem that power SO absurd as first to pass p
law. and then declare ii to have been null &
void in Its creation. VIII Won place this cen
sorial authority with the Executive? That
has not only had an agency in passing the
law---hut is also gifted with too much mower
and influence already. VIII you confide it to
the people in their primary Assemblies
ihey may have the will to decide right But
they viii frequently want the power. A
question respecting the constitutionalitv of
law viii always be obscure, pcrplexed, &
intricate, depending upon principles and res
Sins to DC elected by the learned only Con
greSs will never passa law palpablv and
garinsiy unconstitutional. How will such
question be decided by the people win
they give it deep consideration and profound
discussion VIII the plain and honest far
mer dive into the inrrcacies of law9 No
some popular demagogue-with more conf
dencc and less capacity than his fellow CT
'izens will give the tone to decision. The
people will Always do right when they corn.
pletelr comprehend the subject on which
they are to act. But they will be often in
capable of comprehcnding a question de
pending or the CohStitutionality Of a law
DO not the same evils occnr If the people
appoint some intermediate body for this pur-
pose IF IL be admitted shat the legislature
may make an unconstitutional law, then it
SeeWs to me, that convenience, reason, nc
cessity require that the judiciary should
have the power of pronouncing it's invalid
ity. Examine the reasons on which this
power is claimed.
The constitution is the paramount law Of
the land. If a judge is bound by inferior
lawg--jGrely those OF higher dignity are OBJ
igatCry on him. Refer to trite exan,pte