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** |«Sr HODGE V DONNELL.
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BY REQUEST.
—t—
„ SUPERIOR COURT,
4 Chatham county—April Ter m, 1815.
JUDGE BERRIEN’S CHARGE
To the Grand Jury, at the opening of
the Court.
lWr. Foreman, and Gentlemen *
of the Grand Inquest i * . <
|j| The recurrence of theperiodappoint
ed by lh,v for the session of this court,
enables me to offer to you my sincere
congratulations upon the restoration to
our country of the blessings of peace,
be callous indeed to those fee
t lings by which every good citizen ought
to be animated who does not cordially
participate the gratification* wmch ilp#’
event is calculated t6* excite. The n-i
--turdl state of nations is ceitajnly that of
, society and peace- Thirty years of al
; most uninterrupted tranquility had more
over compJetely#esiranged us from the
iubititmles of war: and the contest
through which we have*been doomed to
against a powerful enemy* has
been conducted by that enemy on the
short sos bur own state* in a spirit of
plunder worthy of barbarous ages,
ol which happily for us, we have hither
to known*only Ip the history of the past.
k From a war into Aindcr such
circumstances, and conducted in the
Spirit which I have described! much
national and individual calamity has re
sulted. The scene through which we.
have passed, has been occasionally dark
*nd perilous; but its'-gloom has been
dispersed by the gallantry of our bre
thren in arms, and by. the warm and
and .voted patriotism of alh classes of our
.citizens* Ihe nation has retired from
the condict, w# h a spirit not merely un
broken by occasional misfortune, but c
levated into conlidence from a retros- ;
pe'ct of those difficulties which she has
successfully encountered-—1 ‘ repeat to
you then, gentlemen, my feheitations
upon the return of peace; upon the
restoration of that tranquility, which
permits to us undisturbed enjoyment
of all the various blessings whhrh are
secured us*by our free and happy con
stitution. * ’A
It will be within your recolfectiori,
gentlemen, that the session of this court
which was to have been holden on the
first Monday in January last, was ad
journed for the purpose of enabling me
to a meeting of the Judges at
Augusta* I apprized *you at that time,
of the circumstances which induced this
irieeting. The question of the consti
tutionality of the acts of the Legislature
generally known, by the name of the al
leviating laws, had been raised in three
of*the circuits of the stale. Tire Judg
es who presided »n those circuits, did
Hot fail to perceive the importance and
responsibility of the duty which they
were called to perform ; since the acts
m question were alledged to be in viola
tion of the Constitutions both of the U- \
nited States and of the State of Georgia. «
If their deliberations should resulun an
affirmative of the constitutionality of
these .acts, the decision would be liable
j 1 to review in the Supreme Court* of the i
tUnited States ; on the other hand from j
IthC sensibility manifested on this sub
ject at the late session of the legislature
w ’.those deliberations should lead to a
different result, it could not escape their
that the decision, which
inder such circmnsuaves, they would
ATHENS ; THURSDAY, JULY 6,: 1815.
be compelled to pronounce* would pro
duce a very strong sensation among the
numerous advocates of this system. It
was important too, that the decision of
Jhe Judges on this subject should be u
niform throughout the different circuits
since the execution qf the law in one
section of the state* and its non-execu
tion in another, would have created an
inequality in the administration of jus
tice, which is abhorrent* from the geni
, us and spirit of oUr constitution.
A proper degree of respect for the le
gislature, moreover required that the
consideration of a question which might
lead t > a difference of opinion between
these two departments of the govern
ment, should not be confided to a single
Judge, but that the decision to be pro
nouneed should be the result of the uni
ted councils of every member of the
bench. With these views, a meeting of
all the Judges was had at Augusta, on
-the 13th of January last* No previous
in erchange of opinions ha l taken place
But alter a frank communication of their
sentiments, and full deliberation on the
subject, they unanimoqsly concurred in*
the opinion which has been announced
to the public*
That opinion affirmed these acts to be
unconstitutional and therefore void
First, because they are in violation o;
the constitution of the U. States—Se
condly, because they violate that funda
mental principle which is inherent in ev
ery free constitution which requires tha T
justice shall be administered equally to
every denomination of citizens, withou
respect to persons—Finally, bcciuse
they are repugnant to the constitution
of the state of Georgia* Upon my re
turn to, the city, sor y the purpose of hold
ing the court at the period to which it
stood adjourned, it was my intention t.*
have given this opinion m charge to the :
‘Grand Jury. , fhe,dangers Vith which ‘
we were menaced at that momen, are
fresh in your recollection. \Ve were
all called to the performance .of other
duties—and the failure of the session oi
tins couit vvas the unavoidable! conse - *
quence. Subsequent events hid appear -
ed to me.to dispense with the necessitv
of such a, communication. I have aU
ways believed that public opinion, to be
correct, need only to be informed l
: saw decision in Question had en
gaged the puoiic -attention, & I .thou;**in
that a deliberate and unprej
usal of the reasons vVhicn hats produced
it, would render it genera ly satisfactory
to the citizens of the state, so far as re
gards the* system itself, this expecta
tion has been realized. Iby constitu
tionality of the alleviating law seems’
now to be rarely maintained. But the
advocates of Uie.systeni nave arraigned
the decision oh the general principle,
that the judges do not possess the pow’
er to refuse the execution of in act of the
Legislature, updn the grauud of its be
ing in violation of the constitution—
This power had been so often affirmed
lu ihc different individual tribunals es
the United States—it had on so many
occasions received the sanction of viri
ous public bodies, throughout the union;
and had been so repeatedly .exercised
by the judges of our own courts, that it
did not appear to. us material in pro-.
nouncing the decision in question, to en
ter info its consideration* Subsequent
events have, however, rendered it ne
cessary, that this question should receive
a lull and dispassionate examination.
A proper respect for public opinion,
is by no means inconsistent with thd
upt ight and independent discharge of
judicial duty. And that time cannot.be
considered as mispent, which is em
ployed in fixing a great constitutional
principle on the basis on which reason
and aumoriiy had placed it. I think it
is dtmouatrable, to every, the humblest
capacity* that the judical department not
only possesses the power to refuse, but
is imperiously commanded by the con
stitution to refuse its sanction to an act
of the legislature Which violates that
constitution. 1 must claim your atten
tion* to a orief discussion of the princi
ples and authorities upon which this
position is founded* ‘
Ihe Consutuution is the snpreme law
of the land. • All power belongs origin
ally to the people—and none can‘ be
rightly exercised but in conformity to
their will* The constitution is the writ-
ten expression of the people’s mil. The
legisUtiv|, executive 8c judicial depar
ments of'the government, are creatures
of the Constitution ; aud no Jiower can
be rightfully exercised by either of these
departments* which does not conform
to its provisions. y The power of making
laws, has been entrusted to the legisla
ture—*hut it results from these princi
ples, and is conceded on all hands, that
the legislature can pass no law which
’ violates the constitution—The legislative
power is thus expressly limited in the
22d section of the Ist article of that in
strument: M The Goners) * Assembly
shall have power to make all laws and
ordinances which they shall deem ne
cessary and proper for the good of the
state, which shall not be repugnant to this
Constituton,** . The (General assembly
has then no power to make laws which
are repugnant the constitution: An
act of the legislature which is so repug
nant, is not a law ! it is merely void.—
But if this be true, and will agree that
* it is so, the power to declare thttf act tQ
be void, must be some where vested—
and the purpose of government require*
that it should be vested in someone of
the tfiree departments created by the
constitution. It cannot belong to every
individual citfcen to question .the valid
ity ofa legislative act—andit cannpt re
quire collective force of a whole
people, to correct each deviation from
constitutional rectitude-. It is not inten
ded to deny, the undoubted right of the
people to resume their original power,
when it is abused by the agents to Whom
they have entrusted it. But such power
bt resumption, which is always produc
tive of civil is exercised
only in extreme cases when all other rej
medies ‘fail;, I repeat then, the ordina
ry purposes of government require, that
the power to declare void an act of the
♦ legislature, because of its repugnance
to the constitution, should be vested in
someone of the three departments cre
ated by that constitution- In which of
these departments is it vested ? Does it*
belong 10 the Executive ? A moment’s
reflection will convince us that this
not be. The powers of that department
are positive and The indivi
dual wflo there, pqt only holds
the sword, but dispenses the honors of
the state- An union of such powers with
that of which we are speaking, rtoulti
be dangerous to tlse. liberiiei of the
people , But the 10th section of the
2d article of constitution decides
this questjop.. It that the
governor “ shall have the revision of all
bills passed in bojttt. hpuses, before, the
same shall Become lawsJ but two thirds
Os bqth houses may pass a law notwith
standing hisdUsenb’—The Executive
is thus a part of the law making pow
er. But it would have been Useless to
have given him a limited Negative upon
the proceedings of the legislature, if
when, notwithstanding his dissent, to
those proceedings jshould have been ma
tured into a law, it was intended ftiat
he should possess the power of declaring
sdeh law to be void on ground of its re
pugnance to the constitution. Such a
power does not therefore belong to the
executive department* Does it belong
tathe legislature to decide upon the consti
tutional validity of their own acts , and is
tuck decision conclusive upon the other de
partments? It comports with perfect
respect to the Legislature to observe
that such a power would be u to enable
the representatives of the people to sub
stitute their will to that of their consti
tuents.'* Why is the constitutional
grant of porter to the legislature quali
fied by the limitation, that the exercise
of such power must not be repugnant
to the if the legislature are
tb be the sole judges of such repug
nance i The legislature is the creature
of the constitution, the agent of the peo
ple for certain specified, purposes, and
porters defined and limited by the
instrument which creates it—But it is
impossible tp any practical purpose, to
form an idea of an agent with limited
powers, who possesses the right at , the
same time to decide conclusively upon
the extent of his own powers—Such a
power would be unlimited —or the lim
its prescribed to it, would be incapable
of practical enforcement. Admit taut
legislature are the sole judges of
tftetr own powers—ahd suppose aa’ ex- -
post facto law to be passed—a, law desJa *
ring an act to be criminal which >v,a*
inocent at the.time of its .compiis^ipn*
Is there no remedy ? Shall the victim b e
sacrificed in the very face of the consti
tution ? * And when it is. too late for his
preservation must we then resort to
first principles ? Must, the people . f isc
in {heir strength ! *Must civil commo c
tion ensue ? There is* a * remedy. The
judicial department is bound &t& declare art
act of the legislature to” be void which is
repugnant to s .the constitution « It does
not merely possess the power; the con
stitution commands its exercise ; tjho
judges haVe no discretion to withhold
it. .», .. ’. . .
There are three Hews of this subject-
The right qbhtended for, results tnevita
bly from the constitutional grant of pow
er to this department—-Its obligation is
“enforced by the oath of office adminis
tered to the jndges.’ It is recognized in
the constitution of the United Stated
and sanctioned by a course of decision *
both in legislative and judicial* tribunals,
and by the concurring opinions of com-
mentators with ‘an uniformity which,
places it beyond the reach of present
controversy- It results from, the con
stitutional graht of power—The judi<-
cial powers of this, state, shall be Vested
in a Superior Court, &c/’ What is ju*
dicial power? It consists in ,the : adnu?
nistration of justice, according to thp
laws of the land—The judges then musjt
interpret those laws. How else can
.they administer justice \n conformity tn
them ? But the constitution is a funda
mental law. The judges musJ ascertain
its meaning, as well as of
any particular act of the legislature—
It is £he supreme law. and they must o«-
bey it in opposition tq all other human
laws. An. example will, ijlpstjrate.thiaU V
subject. A Judge . is, called,. to dec de Sb>
particular case, in relation to which thX
constitution prescribes one rule, and
act of the legislature another;. t Thera
is an irreconcilable variance /between
the two—what is to be, done in this state
of things ? Shall the Judge refuse to
tide ? He is bound %6\ administer the
laws % Shall, pe reject the constitutional
rule, and carry into exception the legisr *
lative £ct ? Shall he obey the will qf
§he people, as expressed in the constitu
jtbn, or the will of ihe legislature as
pressed in the statute % Is he not
bound to execute the bbnsiitiuional lavf
which is and to reject the ler
gislatjve act which is su&ordiiiate ? And
does t not theftower to .decide speh
gislatiye act void, because df its repug
nance to the Constitutional Law. result
then invariably * from thS ixercise or
judicial power I t
feut a Judge is fioiinp [q ekerejse thii
right bjr the obligation of his oath of
office- He is sworn to support the con
stitution. In the casd just stated, how
else “Can he support the constitution, but
by declaring the legislative act to bq
void which frepiignant to it ? jj|
canudt escape observation, fsays the
learned tomtiientair on
Blackstone, J that tq require sucb art
oath on the part of .the judges on thg
one hand, and yet to suppose them
bound by acts of the legislature, which
may violate the constitution which (they
have sworn to support, carries , W jth it
such a degree of imnfrty; as well as ab~
surdity, as no man who pays, any regard
to the obligations of an oath pan hejsup
posed tp contend for or to ‘defenjd>’-J
What would be the situation of p Judgi
sworn to support the institution and %
yet bound tp carry into effect an act,of
the legislature which. violates it?-*
Where could he .find refuge from tb
sin of perjury ? ;
This view of the subject might be
tended, it is susceptible of varied * ex
tra t ion—bdt I prefer to subitituf
my own arguments, jhe aiithoriti -e f op .
guage of the r I P
decisions of the Courts 6t Jus’ epe ?
the concurring opinions of tb c *ce a C ?
inenit jurists and statelilen . / m ost em
try. I begin with* the r >ur r#*
“•ssrv-'-, asars
I be 6th section of 7*
that instrument decU Sth artj c)e -
suiution and the i a „! Aat “ thi. 1 f
1? P ’ urß “^ce of ,a e u nitedT
shall be tne .Sup reme Jai f ‘***» ot\
aud the judges , n eofr of the »»,*?*
hound there * ,• ,
’ “ .
NO. LXX 111
’
m -Mk ■ w JEL&.cm* «• \ J.
