Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1816-02-01


from the highest state courts, to the mfc
rior federal tribunals! On With respect
to the opinions of the members of Congress
who passed the judicial act, / had not ex-
pected that they would have been quoted
to prove it constitutional. Their opinion
was already manifest, in the act itself
and 1t required the opinions of Others, al
least, to colroborate ana support it. The
reiterated opinions of the same men, gains
nothing, on this question of CONSTITUTIONAL
ty. whereas the opinions of others, howe
yer Insignificant, might have been of some
Importance, to shew a concurrence of SEN
timent, on the subject This quotation
however proves another thing tending. es-
ssntlslly, to weaken the authority of these
opinions. Il shows that the judicial act,
IN all its parts, received far less discussion,
In Congress. at the time it was passed,
than the single point now in question, has
received in this Court. That point W as
cot then considered or discussed, in an
individual and insulated manner. This
was, perhaps, unavoidable, as the whole
government was to be then, forthwith,
organized, and time was very pressing. -
1t is not wonderful, therefore, that an act
passed under sach circumstances, should
be found to have violated the constitution,
IN some OF its parts; an instance of which
has been detected and admitted, by the
Supreme Court of the United States itself,
In the case of Marbury v. Madison. (g)
1t was argued, by the appellee's coun-
sci, that both these classes of opinions were
entitled to great weight, as being contem-
poraneous eXpositions OF the constitution
by men who had great agency, in fornl-
ing and putting the same into operation
Whatever weight may be attached to con-
temp0raneous exposition, in other cases,
little credit is certainly due to the construc-
tons OF those, who were parties to the
conflict. and which were gwen, before the
heat of the contest had subsidized, or their
passions had had time to cool: and as to
the advantages supposed to have been
gained, from their having founded the
constitution, which is expounded, that
circumstance is in entire conflict with
principle, deemed vitality important to free
government, by all enlightened writer's,
" The Federalist" not excepted, (h) that the
power Of making and expounding law,
or constitution, should not be blended in
the same hands.
Throwing out of view, all these opinions,
therefore, except so far as / may think
them correct, aad use them for the purpose
OF illustration, and taking for my guide the
Constitution, which cannot err, will ex-
anime these important questions. / will
also avail myself of such principles, as all
the enlightened friends of liberty Concur
IN, as essential 20 preserve the rights and
promote the harmony Of both Govern
nents. AS work containing just expo
sition OF these princip es, will, occasion
ally, refer 10 the celebrated report to the
Virginia Legislature, IN the year 1899. In
addition to other claims to respect, it is to
be remarked, that this document contains
the renewed sense, of the people of Virgil
MA, on the important subjects to which it
relates; sanction deemed important E.
nough, in some Of the States, (i) to oper-
ate an amendment TO their Constitutions
and that 1t had principal influence in
producing new Era, in the American
republic.
l. We come now to enquire, whether
the twenty fifth section of the judicial act,
so tar as it relates to the case before us,
is justified by the Constitution and this
question again branches itself into two en-
qulries-1st. Whether the Constitution
gives any power to the Supreme Court OF
the United States, to reverse the judgment
OF the Supreme Court of a State and
2dly. if 1t does, whether it authorises the
limited and partial power of revisal, con-
templated by that section beg it to be
distinctly understood, that l confne my
enquiries, e.Tclttsiveiy, to the actual point
now under considerdtIon--namel one re-
latDg to the construction of treaty.
do not stop to enquire, whether control
ling power exists in the Supreme Court,
IN relation to any other class of jurisdic-
ton, embraced by the second section Of
the third article of the Constitution. 1t
may noI follow that because these are com
pretended in the same article with the
one before us, they necessarily stand upon
the same, aud no other foundation. Ii is
fiosSioEc, that various considerations, result
tug as well from other provisions Of the
Constitution, as from the nature Of some
ofthe other Classes ofjnrisdictlon, may op-
crate difference. On these points, now
ever, have not stopped to form an op II
ion-l coniine my enquiries to the SINGLE
question now actually before us.
In order TO understand that question
correctly, it is proper TO recollect, that the
Governments the United States is not
sole and consolidated government. The
Cove TnmcBtS OF the several states, in all
their parts, remain IN full force, except as
they are impaired, by grants OF power, to
the General Government. 1t is not only
true, on general principles, that this may
be the case, of Governments in general,
but all the enl ghtened friends OF liberty
agree that is, emphatically, the case, as
to our own confederated government.
AS proof of the first position. it is laid
q la Dad FeoeruGsf p. SO, il is said. that
whether the jurisdiction Of the Inferior Federal