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 will 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 exercise 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.

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 imparțial administra

tion of justice. It is to be hoped that this encroachment upon the constitutional rights of the judiciary will not be imitated by any other state in the Union.

The question as to the power of trying the validity of statutes, by the provisions of the constitution, and of treaties with foreign powers, being lodged in the hands of the judiciary, could not well arise prior to the revolution, because the American colonies were partly governed by British statutes, the constitutionality of which the English judges themselves were not suffered to examine; and consequently, a fortiori, no such authority would have been tolerated in the American judiciary. Nor were the colonial legislatures likely to permit their judges to determine the validity of statutes enacted by them. After the revolution, this power, although not given in express words to the judiciary, was claimed as necessarily arising out of the existence of a written constitution, the exposition of which, like that of any other law, can be safely entrusted only to the courts of justice. It would be destructive of all popular liberty, to permit the executive, both to explain and execute the law; nor would it be less perilous to allow the legislature to expound as well as make laws.

The federal judiciary decide upon the validity of acts of Congress, state constitutions, and state statutes, by the provisions of the constitution, and foreign treaties; but have no power to determine the validity of state statutes, by the provisions of state constitutions; that power belonging exclusively to the state judiciary; who likewise possess the right of trying the validity of state statutes and state constitutions, and acts of Congress, by the provisions of foreign treaties, and of the federal constitution. It is fair to infer, that now, the French and Dutch judiciary have power to try the legality of the acts of their respective legislatures, because France and the United Netherlands have each a written constitution; whereas in England the judges have no such power, precisely because in that country there is no written constitution, by the letter and spirit