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refer such of our readers as may have the leisure and means to pursue the subject, to the reports containing the cases, in which they will find a body of constitutional law, and sound judicial reasoning-of a discreet and respectful tenderness towards a coordinate department, with an honourable independence and firmness in the discharge of a high trust, which afford a ground for unlimited confidence in our Judges, and a just pride in their learning and integrity.

We will premise, as introductory to the perusal of these cases, that they apply, without discrimination, (for there is no plausible ground of difference,) as well to state courts, Constitutions, and laws, as to those of the United States. No such distinction has been relied on, not because "the plain difference" has been "hitherto unnoticed," as Judge Gibson supposes; but because he alone has thought the difference of the least importance to the question. And secondly; that although Judge Gibson thinks the "examples of monstrous violations of the Constitution," put by Judge Patterson in the case of "Vanhorne vs. Dorrance," are too improbable to be used as arguments, and would of themselves "be a revolution;" yet it will be seen that violations as clear and unequivocal as those supposed by Judge Patterson, though not of such general interest, have been made by legislatures, and, if not at once checked, would probably have proceeded to more monstrous acts of usurpation. And here we may remark, that although the public indignation might be roused on the invasion of some general, important, political right, it could hardly be excited in a case of individual injustice and oppression; and yet, has not every citizen as complete a right to the protection of the Constitution as all the citizens? In the cases cited, we shall see instances in which state legislatures take upon themselves to hear causes previously decided by the courts; calling the parties before them; hearing the evidence; and reversing the Judgment of the Court. We shall see them ordering a court to give a new trial, and receive evidence which on the previous trial the court had rejected as illegal. In the same manner we shall find them usurping, directly, executive powers; thus endeavouring to take possession of all the authority of the government; and unite in themselves the three branches of power, whose union is the very essence of despotism. The judiciary did stop, and alone could stop this overthrow of every constitutional right; this career to revolution and ruin. In these particular cases, what remedy could have been had by instructions from the people to their representatives; by elections-or by the people in any shape or manner?

We refer our readers to decisions in the courts of fourteen of the United States, affirming and exercising this controlling pow

er over the legislative department; acquiesced in by the people, as well as by their representatives. —

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In this state, the power has been asserted by the Judges, in various cases; but the court has not been called upon to declare it judicially, except in one instance; in which the obnoxious Act was repealed, previous to the judgment of the court. We however refer to some of the cases, in which the Judges have given their opinions on the subject.

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We have shown the opinions of the courts of Virginia, on this

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The late Judge Cooper, now President of the South-Carolina College, who is second to no man in his devotedness to state rights, and in zeal to draw the federal powers into as narrow limits as possible, speaks of our subject, in a late essay "On the Constitution of the United States." He says, the Constitution is the supreme law; that the Judges, sworn to decide according to law, must take notice of this supreme law; they cannot shut their eyes to it; and that "in cases of doubt or conflict, it is their duty to determine. He says, "there is no gainsaying the able argument of Chief Justice Marshall, in Marbury vs. Madison; nor is there any other tribunal appointed for this indispen

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sable duty." He does not think the argument "inconclusive," nor the principle a matter "rather of faith than of reason."

Such is the mass of authority and reason, against which Judge Gibson has opposed himself-with what success, our readers will judge. He takes his ground with a confidence which may impress us with the sincerity of his opinion; but we can promise him no other satisfaction.

In favour of this power of the judiciary, we have the opinions of the great men who formed the government, and may be presumed to understand the powers intended to be given to the different departments; we have the repeated judgments of the Supreme Court of the Union; we have the judgments of the superior courts of a great majority of the states, uncontradicted by a single judgment of any court of any state; we have the opinion of the Congress of the United States, who have acquiesced in the abrogation of their enactments; we have the same acquiescence on the part of the legislatures of some of the most powerful states of the Union; we have the opinion and approbation of the people of these United States, who, if they had believed the judiciary had usurped a power not intrusted to them, or exercised rightfully a power dangerous to them, would, long ere this, have found a remedy for the evil. On the contrary, amidst the numerous and various projects and propositions for altering or explaining the Constitution, originating sometimes in Congress, sometimes with state legislatures, and sometimes at popular meetings, we know of no suggestion to deprive either the national or state judiciaries of this power, which they have so repeatedly and so openly exercised, and in cases of great interest and excitement.

It was our first intention, to examine the reasoning of Judge Gibson on this question; and we hope to have a future opportunity of doing it. Our readers see the impossibility of undertaking it on this occasion; and for the present, we shall cheerfully trust our case to the armament we have arrayed against the Judge. We cannot, however, leave him, without adverting to two errors he has committed; and which show, with how little examination he plunged into the opinion he has given. If he abandoned the doctrines of Chief Justice Marshall, because he had embraced them "without examination ;" we assure him, he has the same reason for giving up the ground he has now taken.

His first sentence contains a mistake, in point of fact, which he could not have committed with a due examination of his subject. He says, "it seems to me, there is a plain difference, hitherto unnoticed, between Acts that are repugnant to the Constitution of a particular state; and Acts that are repugnant to the Constitution of the United States; my opinion being, that the judiciary is bound to execute the former, but not the latter."

Permit us first to ask, if it be possible that Judge Gibson ímagined that, in the various discussions this subject has undergone in Conventions, in Congress, and in courts; this distinction could have been overlooked, had there been any thing in it? The occasion for applying it, has occurred again and again; but it has been passed by with deserved neglect. Do not the principles and reasoning of Chief Justice Marshall embrace both cases? His argument is good for both or for neither; they must stand or fall together.

But the Judge is mistaken in saying the difference, whatever it may be worth, has been "hitherto unnoticed." It is suggested, but discarded, in some one of the cases reported; we have not a recollection of the case-we therefore go to other proof.

In the first volume of "Browne's Reports," p. 199, published in 1813, an argument from the pen of Justice Brackenridge is introduced, "on the right of the judiciary power to judge of the constitutionality of a law." We will premise, that in this examination of the question, we not only have the difference, claimed by Judge Gibson as his peculiar discovery, but also his notion of seeking redress against unconstitutional Acts of the legislature, by the people themselves instructing their representatives. Judge Brackenridge, however, in his usual wary manner, throws out these suggestions, without exactly adopting them, or denying the judiciary power. "In the case of a law of the United States," says Judge Brackenridge, "it will be found that a power in the state courts, and in the courts of the United States, to resist the execution of a law, on the ground of unconstitutionality, is necessary to individual or state right." So says Judge Gibson. Judge Brackenridge proceeds, marking a difference in the cases. "And the same power in the state courts, with regard to our state Constitution, though it may be the spirit of the time to frown upon it, and to run it down, may come to be understood and acknowledged as an essential principle of freedom." This boasted difference is clearly adverted to, but sagaciously rejected; and the contrary doctrine sustained "as an essential principle of freedom." The manner in which Judge Gibson has bewildered himself in abstract reasoning, is pointed out in the following sentence."The exercise of this power, in a case of abstract deduction, and not immediately comprehensible by the common mind, may excite a prejudice, and set the public mind against it. That may be lost in practice, which exists in contemplation."

Judge Brackenridge observes, that every state, and every citizen of a state, will look to the judiciary, as a barrier between them and the encroachments of the Union; and then most justly says, "under the Constitution of the state, there must be the same rights to the parties to the compact. In the one case, specified powers are given; in the other, rights are reserved."

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