nullitv of every act by a delegated authority, not warranted
by the delegation. In support of these opinions, Ave must
again recollect, that judges constitute but one judicial bench
or branch, and that a verdict must be sent to them by the
jury bench before they can make a judgement; just as a bill
must be sent by one legislative branch to another, before it
can be made a law. Are the jury bound to draw and pass
this verdict without even considering its constitutionality?
What would be the complexion of a legislature, with one
branch under such an obligation ? Suppose the constitution
had expressly invested the court and jury with a power to
disallow a law by proclamation as void, and that the court
had proclaimed to that effect, but the jury oppositely. Even
if an individual is tried for violating a law, because he judged it to be unconstitutional, he is acquitted if he judged right; proving that he had a right to judge.
But although judicial power has no light to enact or repeal law. yet it can effect both ends to great extent by its judgements in private cases; and it has often done so for the purpose of making political or revolutionary law. The English judges destroyed the law of intails, to weaken the power of the nobility, and strengthen the power of the king. The same judges affirmed a law for extending the power of the House of Commons from three years to seven, and thus made the only fragment of the government, over which the people had a feeble power, independent of them. And the judges of the United States have declared an entire code of laws, passed in a foreign nation some centuries before the union, to be laws of the union; although the constitution is literally prospective both as to legislation and the organs of legislation. Had our judges decided differently, their decision would have repealed the common law code. Without inquiring whether their decision is right or wrong, it suffices for our argument to shew, that such is the connexion between legislating and judging, that one may be easily rut; into the other; and that it is impossible to keep these powers seperate and distinct; as our theory requires. If this is
