The Kansas herald of freedom., 1859-12-03
VIVA, !, Judre ssould Be.

ONCE" OF udge, IN Whicn ne controverts
points in Mr.. CHRISTIANS circular.
In reply to the statement that 'The Ju-
diciary is the safeguard of the people
against hasty, ill-advised, or corrupt legis-
lation," he says: Il believe this state
ment to be fundamentally torong. To it
cannot for moment assent. 1t at once
raises the Judge above the Legislature
and the people, and frees him from all the
restraints and demands Of law." Mr..
Thacher's idea of lay seems to be limit
ed entirely to statute law, ignoring Who'll
ly natural law, and constitutional law,
which have heretofore been admitted to be
supreme over statutory enactments. He
forgets that the judicial oath of Office re-
quires the Judge to sustain the constitu-
ton, and enforce all constitutional laws.
1t has heretofore been held by the Courts
that Legislatures have no legal power to
override constitutions. or to deprive men
of their natural rights without due process
of law, and that any enactment clearly in
violation of natural law, or of the State
constitution, is void. The old authori-
ties furnish an abundance Of references to
this effect. But such modern lights as
Mr.. Thac1er reverse the wisdom of the
past. "For who," he asks, sis to Judge
whether Legislation is ill-advised or has
p The Judiciary, of course. II, then,
Judge may annul, defeat, or set aside a
law because hesdeems it hastily framed,
it subjects the law making power to the
whim and caprice Of Judges instead of be-
ing their ruler and director" = =
II can never assent to the idea that a
Judge can blot from the statute book a
law because he deems it fll-advised or
hasty legislation An fll-adyised law
must stand as lao until repealed, else we
might as well abolish our law-making
bodies at once, and place legislative as well
as Judicial proceedings in the hands of
our judges. Herein 1 am compelled to
differ totally with Mr.. Christian"
The fact that generally the grand fault
in "hasty and ill-adviscd legislation" is
that it violates the natural rights of the
people, or contraVenes the supreme law
of the land-the constitution-is over
looked by Mr.. Thacher. An "ill-advised
law" driven through by commercial or
political combinations, though unconsti-
tutional, according to Mr.. Thacher, can be
interpreted by the Judiciary, but not an
nulled. 1t must remain in force until re-
pealed. This is a new theory in refer
ence to the powers of the judiciary-as
contemplate as it is new. Heretofore it
has been considered proper for Judges not
only to decide what the statutes mean,
but whether they conform to the consti-
tuition and to the reserved rights of the
people. The judiciary has corrected the
blunders and errors of Legislatures. But
henceforth, if we agree with Mr.. Thacher,
every unjust and unconstitutional law
must remain in force till repealed. The
idea is in keeping with one of the cardinal
faults of the Wyandott Constitution-its
attempt to make the Judiciary subservient
to the Legislature-by its clauses making
the salary of the Judges dependent on
the caprice of the Legislature.
s. o. Thacher. as one of the aUtivv
members and leading lawyers in that
convention, who controlled his party
on almost every question before that body,
is responsible for the provisions of that
constitution, which threaten and interfere
with the independence of the judiciary.
He secured their passage, too, with an eye
to the post of District Judge, thus prepar-
ing, beforehand, the legislative collar
which he expected to wear. The consti-
tuition is odious enough of itself; but
with Mr. Thacher's Interpretation of the
duties of Judge, it places the natural
and constitutional rights of the people at
the mercy of partisan Legislators for, if
the Judges have no right 10 declare void
an unconstitutional law, the province
of deciding what the constitution means
and what it does not mean, rests wholly
with the Legislature. If that body should
be composed of a majority of pro-slavery
men, they could pass statute recognizing
and protecting slavery in Kansas, which,
if signed by pro slavery Governor, would
become law and remain so "until re.
pealed," if the Judiciary have no more
power than NJ. Thacher gives them. As
Judge he could not declare it void, but
only interpret it. Pass in such manner
a more brutal s!ave-codc than any South
ern State has conceived OF, and would be
Judge Thacher stands ready, according to
his platform, to enforce it to the bitter end =.
What matters it that man is robbed of his
natural or constitutional rights That
question would not come within Thach-
er's sphere. He only asks that the Shy
locks bond shall have been duly indorsed
by the Legislature and the Governor.
Yet such man, who unblushingly ad-
vertises his willingness to sink himself to
the position of mere echo of the Legis-
lature, attempts to prove that Judge
who has gained his seat by the sculdug-
gerry of partisan nominating conventions,
will be more independent than his COM
petitor who makes his integrity and abil-
ity the basis of his claims for the Judge
ship! He quotes, in proof of it, the fact
that in New York, Democratic Judges
sustained the Metropolitan police bill, al
though passed by the opposite party