The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-01-12

government may perform It. Thus in the
case OF Jonathan Robbins it was arx,icd by
Mr.. Marshall in Justly celebrated speech
that he having been demanded under Jaws
treaty, delivering him up was an exercise of
executive power, and therefore the President
had right to perform it.
Legislative power consists in declaring
what the law shall be; executive power in
carrying the law into effect judicial power
In applying the law to particular cases To
make laws. is the province Of the legislature.
10 determine controversies, according to
those which are made, is the province Of the
Jusiciary. To determine what laws may or
shall DC made, is an exercise of legislative
discretion. -
If to determine what laws may constitute
onaiiy be passed, il a judicial power. then
ConEress Cannot exercise it consequently,
ConSress cannot determine what laws to
pass. II they cannot determine how olegis-
late, they are incompetent to leSislate.
1t is essential to the power of lesisla-
tion that the legislature should be able to de-
termine in what manner to legslate. Then
as all the legislative power conferred by the
Constitution, is vested in Congress, it seems
to me, they possess the rights necessary to
It's exercise and that they possess right
TO determine what acts NAV constituticnallv
pc passed And for the exercise of sound
legislative discretion therein, they are res
ponsible to their constituents.
Then, il to determine whether proposed
rule shall be Il law or not, is an exercise of
legislative power, the judges, when they
say an act of Congress shall not become a
-t'w, exercise legislative discretion: A dis
erection which the constitution has not con-
ferred on them; and which must produce
consequences the people never intended to
produce.
l conceive, sir, as in Legislative BODY con-
slsting OF different branches, each branch
may judge of its privileges; SO in the gene
rai government, each department may exer-
else its own powers, subject only to the con-
troll OF those who elected them. The errors
ct any branch of government can only be
corrected by those who are constitutionally
their superiors. Who corrects judicial err
rors ut an inferior court :. Their superiors.
the supreme court Who shall correct the
Legislative errors of Congressl Their supc-
riors, their constituents. Could it be the in
tention OF the American people to vest in
Judges whom the President should choose.
who wouldMold their Offices for life, and who
would neither be elected by, or responsible to
the people, power TO control the legislature
and executive! Is it not reasonable to sup
pose, they would prefer res=ryins the pow
er to control Congress and the President to
themselves Is the power to declare void
the acts OF Congress expressly given by the
constitution! 1t is not 1t is an assumption
OF power by in,kfcation: But the power is
too great and unreasonable to be suffered to
pass by implication. Those who assume it
seek power above the law: Apower which
despots only possess /: A power granted to
Judges no where; and ought not any longer to
be tolerated here
While this power is claimed and tolerated,
your government is imperfect, and ineffici-
ent- Its acts are snares for the citizens.
When an act OF Congress has passed & been
approved by the President, and is published
rs law, no enc knows whether it is a'law
or not. And it may be ten years before we
shall know. Are the citizens to obey this
act. when it is known that it wants the ap-
probation of the federal judges, which appro-
batioris essential to give it validity Are
the citizens to obey it, when such obedience
may subject them to ruinous fines and dam
ages, whenever Mr.. Marshall and his bre-
thren shall be pleased to declare it void
4 he constitution has said: " Every bill which
" shall have passed the House Of Represen-
tatives and the Senate, shall, before it be-
" come @ kaso, be presented to the President
9" OF the United States; if he approve, he
" shall sign it." Its dot said that the bill,
before ff become a Ia.o, shall also be pre-
sentedto, and approved by the federal judi
ges: But that is what they require and
without that appreciation, the man who obeys
an act OF Congress, "acts at his heriL''
The same may be said of the orders given
by the President to military men, The con-
stitution says: ''The President shall be COM
Z" mander i'll chief of the army and navy of
" the United States" 1t does not say his or !
dcrs shall be obeyed if approved by the SUI
preme federal court. But the Judges have
said so in effect. The decision of the court in
the case of Little against Barems is thus n .
bridged "a commander Of ship of war
:" Of the United States, in obeying his in
I" structions from the President of the Uni !
Z" ted States, acts al his he,H. If those in /,
% struc,ions are not strictly warranted by !
80 lar, he is answerable in damages TO any |
% person injured by their execution" Now !.
observe the consequence of these usurpati-
ons. An act of Congress is valid, ftro1ided
tie federal jndges ahtirove IL. An order of
the President to the army or navy is valid, |
firoUided the federal Judges afhrope IL. |
But the citizens in the one case, the soldiers !
or seaincn in che other, are called on to o.
hey, before the validity of the act is decla-
red, BY the only authority competent TO give
1t validity, and to sanction their obedience.
Is not this unjust ? Is it not disgraoeful, that
after An act has been promulgatedb by the con-
stituted authorities as law, that every citizen,
every foreigner, is bound to become a peliti-
clan and lawyer, and to determine before he !
yields obedience, whether the act is ne |
cpscary and t,roy,aT - tncorr,, ;rt,