Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-05-22
FOR TIE ENQuInrR.


STATE OF VIRGINIA.
No. ..
Before enter on minute examination of
the Opinion of the Supreme Court, there are
some general remarks applicable to it, con-
sidercd as one tchOic, which demand our most
serious attention. said i'm my last No. that
che whole of this opinion was cxtra-iudicial,
except that part which decides against the
writ of error and that the court have de-
parted from the strict rules of judicial pro-
priety, IN order to impose their own political
opinions on the public. The first part of this
charge, is fair subject of argument the
other Is Il matter OF opinion, which will be
decided by every man according to the extent
of his charity.
1t is wise principle which courts have
adopted, that every thing not necessary to
the decision of the particular point in issue,
| is ezra judicial and not to be regarded as
authority. They ought never to decide any
thing by anticipation. The business of
Judge is to pronounce the law upon what has
occurred, and not to guard against events
which may occur hereafter. This is solemn
canon of Judicial conduct, of which none are
better aware than the supreme court.
ann not to be informed, that courts very
often depart from this narrow path and
sometimes step aside to borrow an illlistra-
ton or Il principle from some of the neigh
touring doctrines of the law. But believe
1t IS without example, that in an elaborate
opinion like that under consideration, COW
erinS one half OF large newspaper, and
touching Tie political rights of bodies who
tag cid,m 10 Independence, a court should,
,ctfhom necessity, devote nine tents OF their
labour to arguing dozen these pretensions.-
However they may profess reluctance TO de-
eide such delicate questions, cannot so far
abuse my own understanding as to give them
implicit iaitii. Let the states consider this
as sautary warning of what they are to
expect from the impartial tribunal OF fede-
raj court.
y very plain statement will put this ques-
uon IN clear point of view. case is
brought before the court mo matter how for
decision. The party who finally prevails
urges great variety of points on his side.
Inc court arc of opinion that one of those
points IS clearly iii his favor, and give judg-
meat accordingly. 1t is therefore not neceS-
st7y and OF course ertm-j Judicial to decide
the other points for whether they be sound
or false, lac must succeed.
Hut the supreme court themselves have rem
dcred al reasoning on this subject quite nm
necessary. They have decided this very
question in the most solemn manner In
that part of their opinion where they treat
OF the appellate jurisdiction OF the court,
they had 10 encounter their own opinion in
The case oi biarbury rs. Madison; in which
construction was put upon the I'd section
OF the Sd article OF the constitution, which
was totally Incompatible with the idea of APP
peiatc jurisdiction in the case of Cohcns Us.
the State OF Virginia. The opinion in Mar
bury rs. Madison, was too palpable to be
cyadcd BY any of the arts OF construction
1t was necessary therefore to destroy the au-
thority OF that opinion, so far as it applied to
the case then at bar. To do this, the court
pronounce that this part of the decision in
tiarbury Us. Madison, was ertrqjudicidi, and
therefore not binding as precedent; and
the reason given for this opinion is, that the
case, altho' properly decided, did not require
the iull extent OF the principle which the
court laid down on that occasion. Here
then, we have a. definition by the supreme
court themselves of what is an ertra Judi
c'dt opinion. Whatever is not necessary for the
particular case before them, IS, according TO
them, ertra-j judicial. Let the case now TN
der consideration be compared with that of
Marbury VS.. Madison let them be laid side
to side by each other and it will be found
that thcy not only agree in all material points,
but that Marbury and Madison adheres
much more closely to the judicial rule, than
the case of COhcns vs.. the State of Virgi-
ma. 1t will be found that the supreme court
have, IN the former case, set aside the con-
struction of the constitution altogether, un-
der which the case was decided, and substi-
tuted nelo rule retaining only the decision
while they Discard the reasons on which if
was founded while in the present case, they
have thought themselves at liberty to go in
to an elaborate investigation of questions,
which might easily have been passed over
without notice, without affecting the ulti-
mate decision OF the cause. The court then
may be fiririy presented with this dilemma.
Either the case of MarbtTy VS.. Madison is
eItrdJHd'ciGt, or it is not. If the former,
then the court in the case OF Cohens VS.. the
State OF Virginia, have wasted their time i'm
nsootang points, not necessary TO be decided,
contrary to their own profession OF reluc-
lance to intermediate with delicate political
questions if the latter, then the case of
hlarbury and Madison remains in full force,
and the cOart have done wrong in assuming
appellate jurisdiction in the case of Cohens
VS.. the State of Virginia.
will not dwell longer on this part of the
subject, although it may be viewed under
many other aspects but will hasten to
another general view of the opinion, which
deserves to take precedence of all others, on
"cCo"'I vi It's vast importance.
Every American who has imbibed that
spirit of jealousy which belongs to freemen,
rl'lst look with apprehension to the princi-
pies Reconstruction, which areappIied to the
constitution. IL is evident that the painest
text may be wrested from It's true meaning,
| by putting il on the rack of construction.
Every lawyerknows what an ingenious sys-
tenn of rules has been constructed for eluri-
dating the import Of statutes and they are
so numerous and subtle, that the profession
are seldom at a loss to find plausible reasons