Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1833-03-28

separation of parts. But IN this scl.se, ii was no
applicable TO power. What then is meant by di
VISION Of power lie could not conceive OF dt
vision, without giving an equal right 10 each tt
Judge Of the extent of the power allotted la each
Such right he held 10 be essential 10 the existence
OF division; and that to give 10 the party the OK
elusive right Of Judging not only ofthe share ao,
ted to it, but of that allotted To the other was to an
nul the division, and would confer the whole pow
cr on the party vested with such right But II is
contcnded that the Constitution has conferred ON
the Supreme Court the night Of nlglng between
the States and the General Government Those
who make this objection overlooked he conceived,
an important provision of tho Constitution. By
turning 10 the 10th amended article OF the consl-
tuition, 1t will be seen that the reservation of pow
r TO the States Is not only against the powers de.
legatcd 10 Congress, but against the United States
themselves, and extends, OF course, rs well 10 TIE
judiciary, the other departments OF the Govern
ment
The article provides that all powers, not delega-
ted to the United States prohibited by it to the
States are reserved 10 the States respectively, or 10
the people. This presents the inquiry what pow
O. rs arr delegated To the United States They may
he olas,ed under four divisions; Fifsi, those that
arc delegated by the s-Ics to cach other, by viz
tue Of which the Constitute may be altered or
amended by three fourhs of the States, when,
without which, two1ll have required the unani-
nous vote of al. Next the powers conferred ON
Congress ; then those on the President and, f.
nally, those on the Judicial Department all Of
which particularly enum1rat d III the parts OF
the Constitution which orsanz, the respective de
partments The reservation Of powers 10 the
States is, "a he had sad, AGAINST the whole,
and is full against the Judicial, rs II Is
against the executive and legislative depart
mcnts of the Government. II could not be
claimed for the one without claiming 1t for the
whole and without. IN tact, annniimg this lmpor-
tant provision Of the Constdu, on. Against this,
as II apncarcd to HIM. conclusive yiow Of the sub
icct it has been urg hat this powers cXprss ~
conferred on the Supreme Court, by that portion
oflhc Constitution which provides Dat the judi
cial power shall extend to all cases IN law aud
equity, arising under the Constitution, the laws Of
the United Ntatee and treaties mad, under thcu
authority lie believed the assertion utoly dtst
tlte of any Foundation. II obviously VAS the ia.
ten'ion Of t,c Constitution imply to nel,e tbe j.
diaiA powers commensurate with the law maklHf
AMI trcnty making powers AMI 10 yesl It with the
RIGHT of applying the Constitution, the laws, aud
the treaties, to the cases which might nrsc ~ Do
them; and not Ia make It the Judge OF the Gorstl
tutiou =. laws, and the tttatts IT, ms'lees. Il
fact, the power of applying the laws TO the taels =
the cases, and necllog upon such applications, con
stltutos IN truth the judicial power. The disune
ton between such power and that Of judging .
the laws, would be pert' city apparent WHOM W nd
vert to what is tll a k owledged power of the Couf
in reference u ltcaues or cunpacls tctNccu sovcl
eisne. 1t wos perfectly established that the Cour,
have no rig ht 10 Judge of the violation Of treaties
anl thai, in reference to them their power is lml
ted TO tho right of Judging, SIMPLY of the VIOLATION
of rights under them: and that the right OF ledglh
Of iniractlcns belongs exclusively to the ratiic
themselves and not to the Courts of which w
have an example III The French treaty, which wa
declared by Congress null aud VOID, in Consequence
Of its violation by the Government of France
Without such DECLARATION, had French oltlzci
sued citizen Of this country under the treaty, tn
Court could lave taken M eosnzance ol It's lnfiac
ton nor after such declaration, would 1t hov
heard any ar egmcnt Of proof gong % show tba
the treaty had not been violated
Tie declaration Of Itself was conclusive Oh tin
court But it would be asked how the court oh
tanned the power to pronounce 4 law or tcuty IN
constitutional, when they come IN conflict viii
that instrument? lie did not deny that II posses
ses the right 1ut he couil hr no means eoucele thu
1t was derived from the Constitution. II had IT
orr in in the necessity of the case. Where thcr
were two OF moro rules established, one FROM
HIGHER the other from a IaWCr authority whjc
might come into conflict, in applying them to pal
ticuar case the iuds &c could not avoid prononncn
in favor of the superior against the inferiof.
was from this necessity, AMI this alone, thn ia
power which IS now set up 10 override the right
of the States against an express provision of tn
Constitution, was derived. II had no other origin
That he had traced it 10 It's true source, would b
manifest from the fact, that 1t a power whicl
so far from being conferred exclusively ON the Su
preme Court as was insisted, belonged 10 ever
court--inferor and supcrIor-Statc and General
and even 10 foreign courts.
But the Senator from ID laWare, Mr. Clayton.
relies on thc Journals of the Convention to prov