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f»V« orlaii'ifffWy stile to iac contrary
notwithstanding” Here is a clear and
y explicit acknowiedgitfent of the right of
a state judge, to declare void an act of
the state legislature which is repugnant
tojiJjo constitution of the United States;
aJPthe clause as clearly recognizes the
right of such judge to declare void an
act of Congress for the l ike re pug
nance—it dofesmot merely
tight—it commands its exercise. The
Judges in every state shall be bound by
the Constitution, Bcc. of the United
State any thing in the constitution or
laws of any state to the; contrary not
withstanding* If then an act of the
state legislature be in opposition to the
constitution of the United States, the
judges are required by this clause to
give operation to the constitution and
reject the legislative act, must they not
in so doing* declare the legislative act to
be void because of its repugnance to
the constitution ? But the like however
is also given in relation to an act of Con
gress. The Judges in every state, shall
be bound by the constitution and ‘he
laws of the United States made in pursuance
thereof # When therefore a state Judge,
is called upon to give operation to an
act of Congress, which contravenes the
provisions of the constitution and laws
of the state, the enquiry, whether such,
jatin act of Congress conforms to the con
stitution of the United States is necessa
rily forced upou him—upon the result
of this enquiry its claim to the superior
ity depends. If the act of Congress
conforms to the constitution of the Uni-,
ted States, and is “ made in pursuance
thereof the Judges in every state are
bound by iT» any thing in the constitution
or Laws of any state ta the contrary not
withstanding.* In this event, they will
be bound to give operation to the act of
Congress* and declare. void* the state
law which contravenes it. But if the
act of Congress does not conform to the
constitutionof the United States—it is,
not* made in pursuance thereof»W\zy will
refuse to execute such act,’ because of
its repugnance* and give operation to the
state law. For the purpose of carrying
into effect this provision of the constitu-.
tion, the judicial'act of 1780 provides
That a final judgement or decree in
any suit in the highest court of Jaw or
equity of a state, in which a decision in
the suit eould be had, where is drawn
in question.the validity of a statute, &r.
of the United States, and the decision is
ag.unst its validity* &c. or where is
drawn in question the validity of a stat
ute of any state on the ground of its be
ing repugnant to the constitution, trea
ties or laws of the United States, and v
the decision is in favor of its validity,
Bcc. may be re-exanajned and reversed or
affirmed in the Supreme Court of the
United States by writ of error, scc?«fe
Thus then the Judges of the state are
authorised and required to declare void
an act of Congress or of the state legisla
ture, which violates the constitution
they are bound to preserve from violati
on. Are they less bound to preserve
their own constitution, which is the
source ot their power, by which alone
they officially exist ? I will next turn
yourattention to the decision of ourcourts
of justice. The’Constitutionality of the
carriage tax. Was discussed* in the su
preme court of the United States in the
#ase of Hylton, plantiff in error, vs. the
United States. This cause was argued
upon a case, stated between the parties—
was carried up by consent, and is un
derstood to have been defended under
the direction of tjie state of Virginia,
with the sole view of testing the consti
tutionality of the aw The case of
Marbury, vs* MadiSonV was decided by
the same tribunal The decision affirms
the judicial act of 1789, or so much of
it. as gives authority ta the supreme
court to issue writs of Mandamus ta
public officers, to be unconstitutional,
and therefore void *
I extract fr«jim the decision of the court,
the following remark^.—“ It is emphati
cally, the province and duty of the judi
cial department, to say what the law is.
Those who apply the rule to particular
cases, must of necessity expound it
If two laws conflict with each other, the
court must decide on the operation of
each. So, if a law be in opposition to
the constitution apply to a particular
case> soAbat the court must either decide
that case conformable to the law disre
garding the, constitution ; or conforma
ble to the constitution, disregarding the
law—the court must determine which ot
these couficting rules governs the case.
This is the very essence of judicial duty.
It then, the courts are to regard the con
stitution, and the constitution is supers*
or to any ordinary act of the legislature,
the constitution and not such ordinary
*ot must govern the case to which they
* _ • M. • . # ♦ v ** >r
’ f•• w- - -r. * -.* ‘ ‘ ,» 4
(loth ftpp]y.* ,^yigaln— < lt Why docs a
*J inline swear toil; sc barge his dmi.es &-
greeablyto the constitution# if that con
stitution forms no rule govern
ineut ? If such be th%real state of
things, this is worse Jhan solemn mock-*
ery- To prescribe r> r take this oath
becomes equ iiy a crime/*
In the case of Vantrorn lessee, vs.
Dorrance, before the circuit court of
Pennsylvania, an act of the legislature
of that state,. was decided to be uncpn
stitutional and void. Judge Patterson,
in pronouncing the opinion of the court,
thus expresses himself: “ The consti
tution of a state, is stable and perma
nent; hot to be worked upon by tue
temper of the times, nor to rise and fall
with the tide of events, notwithstanding
the competition of opposing interests,
and the violence of contending parties,
it remains firm and immoveable as a
mountain amidst the strife of storms, or
a rock in the ocean amidst the raging
of th^ { waves—l take it to be a clear po
sition, tjjat if a legislative act oppungs
a constitutional principle, the former
must give way; and be rejected on the
score of repugnance—l hold it to be a
position'equalfy clear and sound, that
in such case, it will he the duty of the
court to adhere to the constitution and
declare the act null and void. The con
stitution is the basis of legislative au
thority ; it lies at the foundation of all
law, and is a rule and commission by
which both Legislators and Judges are
to proceed.” In Virginia, an act for
the establishment of District Courts
throughout the state, was depfared un
constitutional by the Court of Appeals,
in 1788—and they refused to execute ft.
The legislature was convened. The
decision of the court Was acquiesced in,
and the act repealed. In 1793, the
same power was exercised in that state*
in the case of Kamper, vs. liawkins. In
North-Carolina, the question occurred
at an early period. In the year 1785;
the assembly passed anjact» taking from
all persons the right of suing for proper
ty sold by commissioners of confiscated
estates. The Judges declared the act
invalid, and in 1786, the asse ably alter
ed it ;pn that occasion the legislature
concurred with the judiciary in the pos
ition, that the legislature could not de
prive any man of his right to property,
or of*his right to sue for it. One of the
judges, illustrated his opinion in this
manner—** As God s«id to the waters,
so far shall you go and no further, so
said the people to thejr legislature.**
This right has been since exercised in
that state, whenever the occasion requi
red it—and they have recently declared
void, for its unconstitutionality, a sus
pension law, passed under circumstan
ces and with views similar to those
which induced the alleviating laws of
this state. The power to declare an act
Void, for unconstitutionality has been re
peatedly exercised in Sou’th-Carolina.
In the case of Lindsey, Vs. the Commis
sioners, before the constitutional court,
one of the Judges thus expresses him
self— u In exercising this high authority,
the Judges claim no judicial supremacy,
they fire only the administrators of the
public will. If an apt of the legislature
is held void, it is not because the Judg
es have any control over the legislative
power, but because the act is forbidden
by the constitution, and because the will
of the people whiqh is therein declared,
is paramount to that of their representa
tives declared in any law ” In our own
state, examples of the exercise of this
right, have been wanting. In the case
of Grimball, vs. Ross, in the county of
Liberty, my predecessor on this bench,
Judge Charlton, did distinctly affirm
the power of this court to declare an act
of the legislature to be void, because of
its repugnance to the Constitution. And
in the Superior Court of Baldwin county,
the same principle was decided bju his
honor Judge Early. The» fatter decision
was pronounced in the year 188$> at the
seat of government— it was supported
by a luminous and elaborate argument,
and was published at the request of the
grand jury. This decision excited no
dissatisfaction on the part of the legisla
ture. T v he Judge who pronounced it,
continued to enjoy the confidence of his
Country on the bench, and has since Been
elevated to the highest office in her
gift. “ V
It remains to direct your attention to
the sentiments of various legislative bo
dies on this subject, and to the opinions
of commentators on the constitution of
the United States. In the first session
of Congress, after the adoption of the
constitution, this question occurred,” has
Congress the power to pass an actdeclara •
flry of the Constitution ? « 4 In the debate
on this question different of
Congress expressed shemsdve*- to the
following effect, u it rs the fluty of the
legislature to mike laws—of the Judges
to expound them. It appears to
proper for the house to declare, whit
is their sense of the constitution. If
we declare improperly, |he judiciary
will revise our. decision. If the laws,
shall be in violation of any part of the
constitution, the Judge will not hesitate
lo decide against them. * General Jack
son of Georgia then a member of Con
gress, thus delivers himself upon this
question—‘ The constitution is made
the supreme law of the land. Are not
the judgps of the different bound’
by oath to support that supreme law/*
Mr. Baldwin, of Georgia, observes “ t
properly belongs to the judiciary to de
cide this question. It is their province
to decide upon our laws, If they find
this clause unconstitutional they will
not hesitate to declare it so.”—To the
like effect, is the remark of Mr. Gerry
th* late Vice president of the United
States”—The Judges arc the expositors
of the constitution, our exposition there
iore would be subject to their revisal.—
liut a further reason why we are tot
expositors, is that the judiciary may
disagree'Witlvus, and undo all that our
efforts have labored to accomplish. In
dependent tribunals of justice will con
sider themselves in a peculiar manner
tho guardians of these rights—they will
be an impregnable bulwark against eve
ry assumption of power in the legisla
ture or the executive f Finally, we
have on this subject the sentiments of
Mr. Madison. “ I acknowledge that
the exposition of the laws and constitu
tion devolves upon the judiciary.*’—
‘llVus the opinions of, these eminent
statesmen, are in support of the power
for which lam contending. lam ena
bled also to state to you that the legis
latures of Vermont, New-Hampshire,
Massachusetts, Khode-Island, New-York
and Virginia have expressly maintained
the same principle—Such also, is the
opinion of Judge Tucker, of the Su
preme Court of Appeals in Virginia,
in his commentary on Blackstone— H If
the legislature should pass a law dan
gerous to the liberties of the people,
the judiciary are bound to pronounce,
not only whether tfie party accused
hath been guilty of any violation of it,
but also whether such a law be permited
by the constitution, and if nojt, to ac
quit the accused from any breach of
such unconstitutional act,*’ This expo
sition shalFconclude by a reference to
■%: commentary on the constitution,
which was cotemporuneou* with its a
doption and which was the fesult of the
joint labors of Mr. Madison and two
other eminent statesmen—“ The com
plete independence of the courts of jus
tice is peculiarly essential in a limited
constitution. By a limited constitution
1 undei stand one which contains cer
tain specified exceptions to the legisla
tive abthoritj ; speh for instance, as that
it shall pass no bills of attainder-, expost
facto laws and the like. Limitations
of this kind can be preserved in practice
in no other way than through the me
dium,of the courts of justice, whose du
ty it must be to declare all acts contra
ry to the manifest tenor of the constitu
tion, void. Without this, all the reser
vations of particular rights or privileges
would amount to nothing.** Nor does
this conclusion by any means suppose a
superiority of the judiciary to the legis
lative power. It only supposes that the
power ot the people is superior to both ?
and that where the will of the legislature
declared in its statutes, stands in oppo
sition to th£t of the people declared ih>
the constitution, the Judges ought to be
governed by the latter, rather than by
the former—they ought to regulate their
decisions by the fundamental laws, ra
ther than by those which are not funda
mental.** “It can be of no weight to
say, that the courts on the pretence of
a repugnancy, may substitute their own
pleasure to the constitutional intentions
of the legislature—this might as well
happen in the case of two contradictory
statutes—or it might as well happen in
every adjudication upon a single statute.
The court must declare the sense of the
law—and if they should be disposed to
exercise will instead of judgement, the
consequence would equally be the sub
stitution of their pleasure ti> that of the
legislative body. The observation, if it
proved any thing, would prove that there
ought to be no Judges distinct from
that body-** 1 think it must now be
sufficiently obvious that the Judges have
assumed no new or unwarranted author
ity, in pronounciug that the alleviating
law was-void, because repugnant to the
constitution—l hat they have arrogated
to themselves no judicial supremacy—
that they have committed no infringe
ment of the constitutional powers of the
s ’ AM
legislature—that they )iave been guil:•/
of no violation of the rights .of t hi? peo
ple. In truth, gentlemen, nU interposi
tions of judicial power) for purposes
like that of which we are speaking, are
for the protection of the people—-to se
cure t> them those -* rights / which
are guaranteed them by the constitutioi|
—-nor is there any danger of its abuse,
to* the injury of the people, orof the just
rights of the legislature. No Judgfe
will desire to%e placed in a situation,
which may call for its exercise—the
duty which it imposes, is often difficult,
always delicate and responsible; con
sidering the tenor of judicial ■ offioq
whtfe he cannot fail to reflect ithat the
exercise of this power, puts huf Jt&tdiJ
llsion with those by whom he has been i
called to the bench, and who at no \nm
distant period must decide the question
of his continuance there. I3ut he is
bound to silence these suggestions at.
the shrine of his official duty; its re
quirement must be obeyed promptly i
and with firmness. Os the consolations
which result from such conduct ; of ai
, mind conscious of its ovvn rectitude, he
cannot be deprived ; and for the rest,
he must commit himself to the candor,
liberality and intelligence of his coun
trymen.
Addres} of the Grand Jury.
- The Grand Jury of the county of
Chatham, return their sincere thanks to
his honor judge Berrien, for his argu
mentative and lucid charge, and seize
with pleasure this opportunity of expres
sing their approbation of his official pro
ceedings. They receive with satisfac
tion, and sincerely reciprocate the con
gratulations of the court upon the ter
mination of the late bloody contest with
bur powerful adversary. The progress*
of all e vents is marked by° the
versatility of fortune, and though in the
early stage of the war, we were often
the sport of accident ; and though it
thatSperiod, through the gloomy viskj,
of futurity, tne patriot’s eye could rarely
discern one cheering ray, yet it found
amp Jig consolation in the glory and
splendor which burst upon its termin
ation ; a termination so bright, so glon- ‘
ous, that even the enemies of the war*
became enamoured of the caqse, and tho
revilers of their country, ceased td abuse
what they could not but admire. That j
the contest has terminated thus, every
good citizen must rejoice ; that the re
public has passed uninjured through
the strife of war, must be. v a cause of
proud exultation to every friend of the
constitution* No means which. | cruel
and vindictive enemy could devise, were
left untried to effect its destruction ; and (
it can never be called upon to rests 4 ii!
greater shock, patricidal arm
be raised agains it- We unite in opin
ion with the court, that the Judiciary
have not only the power, but it is their
clirty to declare a law void, when it .vio
lates the constitution* We do therefore
approve the decision of the Judges pro
nounced in Augusta, in January iast, ( |
and tender’ to this court the approbation
of our voice for the part it took in that
decision. That our fellow citizens
throughout the state (untrameiled v by*
thpse influences which too often mislead):
may have an opportunity of examining
the argument.of this court, we request
his honor to direct the publication pi it in
the Milledgeville, Augusta, stnd Savan
nah papers, and order tile expenses of
printing to be paid.
J Extract from the Minutes.
JOB T. BOLLES Clark,
Joseph Stipes, Foreman*
James Bilbo, Gardner Tufts, George
Iderb, Fedrick Petit de Villcrt*
Jonathan Cline, N-Turnbull, Andrew
Knox, John Lewis t Jjreo. L- Cope, ifobt*
Mackey* Geo. Myers, F- S- Fell* Alex.
Telfair, John Y. White, William Starr*
David Taylor, jr Josiah Penfield, Jacob
Shaffer, John Dillon. c
Upon reading the Presentments of
the Grand Jury, it, is ordered that tht*
charge of the court, together with the
Address of the Grand Jury relating
th£re to be published in the gazettes of!
Milledgeville, Augusta and
in confomity to their request.
• Extract from the Minutes » - j
JOB T. BOLLES. dirk. \
■’ _ ■ /l
From the New*Yotk Coumbian , June
y; Horrid Massacre l ! /. *s
We are this evening enabled to lay before oAm
reader the particulars of the Massacre at Dartjfl
moor Prison, in England, whefe the Wood of si*fl
ty-three defenceless Americans, was wamor.jß
spilt without any cause or provocation wbatey
We have perused the Journal of M». AnUtewa* *
kept during his confinement in that prison, prut
the following is the substance of what he record*
