lute, and, says De Lolme, "can do every thing except make a man a woman, or a woman a man." And, although some of the judges have declared that a statute, made against natural equity, was void, yet it is generally laid down as a fundamental principle of English law, that no act of parliament can be questioned or disputed; that, in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature: his province is to interpret and obey the mandates of the supreme power of the state. Let the inconveniences of a statute be what they may, no judge, or bench of judges, can constitutionally dispense with them; their office is to expound, not make law; and, during the last hundred and fifty years, no instance has occurred of any English judge declaring an act of parliament void, on account of its being unconstitutional, or repugnant to the principles of reason or equity, or on any other ground.

But in the United States the people have established certain rights paramount to the power of the ordinary legislature; a precaution essential to security, and necessary to guard against the occasional triumph and vio lence of party, in a government altogether popular, elective, and representative. Without some such express provision settled in the original compact, as set forth in the written constitution, and constantly protected by the firmness and moderation of the judicial department, the equal rights of the minor party would probably be often disregarded in the conflicts for political power, and be sacrificed to the fury of a vindictive majority. No question can be made in these United States but that all legislative acts, contrary to the provisions of the constitution, ought to be null and void. The only inquiry is, if the legislature itself be a competent judge of its own constitutional limits; or the business of determining the constitutionality of a statute be the fit and exclusive province of the courts of justice?

If the legislature be left the unresponsible judge of its own constitutional barriers, the efficacy of this check is lost; for the legislature would incline to narrow down

or explain away the provisions of the constitution, from the force of the same popular passion, or some considerations of expediency, which would lead it to overturn private rights, and invade the security of private property. The legislative will would then be the supreme uncontrollable law, as much with as without these constitutional limits and safeguards. Nor would the force of public opinion (the only restraint then left) be much felt or regarded; for, if public opinion were sufficient to check the tendency to mischief in governments, there would be no need of original limitations and constitutional restraints. But all experience teaches, that when powerful political rivalries prevail in the commonwealth, and parties are thoroughly disciplined and highly hostile, every measure of the legislative majority, however tyrannical and flagitious, is sure to receive the sanction of their constituents; and every step of the minor party will be equally approved of by their adherents, as well as indiscriminately rejected, misrepresented, and condemned by the voice and vote of the prevailing faction.

The courts of justice, therefore, which are organized with peculiar advantages, well calculated to exempt them, and their judicial proceedings, from the influence of faction, and to secure a steady and impartial interpretation of municipal law, are the most proper power among all the departments of government to keep the legislature within the limits of prescribed duty, and maintain inviolate the authority of the constitution. It is also an indisputable maxim in American politics, that the executive, legislative, and judicial branches should be, as far as possible, kept distinct and separate. The legislature ought not to exercise the powers of the executive or judiciary, except in clearly specified cases. An innovation upon this distribution of power tends directly to overturn the due balance of government, and introduce an unqualified despotism. But the exposition of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation of a law, whether statute or common. The courts of justice are, indeed, bound to regard the con

stitution as a law of the highest nature-the supreme law of the land, to which every inferior or derivative legal regulation must conform and be obedient.

The constitution comes from the people in their character of plenary sovereignty, when defining the permanent conditions of the social alliance between the different states of the Union; and, therefore, to contend that the courts of justice must adhere implicitly to legislative acts, without regarding the provisions of the constitution, is to contend that the power of the agent exceeds that of the principal; and that the will of only one concurrent and co-ordinate department of subordinate authority ought to control the fundamental laws of the sovereign people. This judicial power of determining the constitutionality of statutes is necessary to preserve the equilibrium of the American government, and to prevent the usurpations of any one department upon the powers and privileges of the others. And of all the branches of government, in every free country, the legislative is most impetuous and powerful; whence the necessity of arming the executive with a negative, either absolute or qualified, upon the proceedings of the legislature. See some very ingenious reasoning in Montesquieu's Esprit des Loix, and a still abler disquisition in the Federalist, on the necessary practical separation of the executive, legislative, and judicial powers, from which it appears that the judicial power is the weakest of the three; and, as it is equally essential to the well-being of the commonwealth, to preserve entire the power of the judiciary, it ought not to be left exposed to the attacks of a popular legislature, without adequate means of a constitutional defence.

This is one reason why the judges in the state of New-York are constitutionally associated with the governor to form the Council of Revision, to revise all bills about to be passed into laws by the legislature; and this singular association, giving a kind of legislative power to the judiciary, renders some of the preceding observations less applicable to the constitution of NewYork than to that of any other free government. Ne

vertheless, as a general principle of political economy? and its kindred science, municipal jurisprudence, it wil be found that the right of expounding the constitution, as well as the statute law, is the most fit and effectual weapon by which the courts of justice can repel all hostile assaults, and guard against all unconstitutional encroachments upon their chartered claims and rights. Nor is there any danger that the establishment of this principle should exalt the judicial above the legislative power; for they are co-ordinate branches of government, and equally bound by the constitution; and if the judges should substitute caprice and arbitrary will for the excrcise of sober discretion and rational judgment, they are not left, like the legislature, to the ineffectual control of public opinion; but are liable, by an express provision of the constitution, to be impeached for misconduct, and tried by the legislature; and, if convicted, removed from office.

The United States, and the separate states generally, acknowledge this power to reside in the judiciary; but, on the 29th of November, 1815, the Georgia house of representatives passed a resolution censuring their state judges for deciding the alleviating law; that is, a statute, passed by the Georgia legislature, prohibiting the use of any legal means for the recovery of debts, to be unconstitutional; and also denying to the judiciary the right of giving any opinion upon the constitutionality of legislative acts. This resolution is sufficiently flagrant and illegal; because it denies to a separate and co-ordinate branch of government a constitutional right, which has been acquiesced in, and acted upon, by the United States, by the other separate states, and by Georgia herself, heretofore; a right which, from the very nature of our republican institutions, appertains to the judiciary. But this outrageous resolution scarcely equals the usurping conduct of the Georgia senate, upon whose table, in November, 1815, was lying a bill to compel the judges to exhibit to the legislature all the rules of their courts; and to take away from the

bar and judiciary the right of establishing any rules for their own government, unless they have first received the legislative sanction.

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This is, at one stroke, cutting up by the roots the constitutional independence of the judiciary, and rendering the judges mere passive instruments of an arbitrary and overbearing legislature; which is, in fact, establishing the most dangerous, because the most unresponsible of all tyrannies. A single despot may be resisted, called to account, and punished; but a multitudinous despotism, composed of a numerous body of popular representatives, elected only for a short season, may, at any time, crush the liberties, and trample on all the political rights of the community, without control, and without punishment. Several of the leading members of the Georgia legislature pledged themselves never to cease their exertions until the omnipotence of the legislature was acknowledged; and they also contended that the constitution, whether state or federal, is not law, but merely the will of the people; which can only be known by the voice, resolution, and vote of its constitutional organ-the legislative assemblywhich is, therefore, paramount in power and authority to every other department of government.

The judiciary of Georgia are sufficiently dependent by the tenure of their office, without any legislative encroachments upon their rights and privileges; for they are elected only for three years, and are removable by the governor, on the address of two-thirds of both houses. Now judges, who know that their re-election to office hinges upon the will and pleasure of their electors, at so short a distance, cannot feel themselves independent, and at liberty to act without regard to the opinions of those who may, or not, at their own discretion, re-appoint them to office; and the judges are equally at the mercy of the legislature, when twothirds of the members can, by their mere address to the executive, remove them from office. It is vain, under such circumstances, to expect an impartial administra