Indiana Intelligencer, Volume 5, Number 221, Charlestown, Clark County, 6 November 1822 — Page 1

Indiana Intelligencer,

AND FARMER'S FRIEND, VOL. V. CIIARLESTOWN, INDIANA, WKDNF.SDAY, NOVE.M11F.U fi, 1822. NO. 221.

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Constitutional Questions.

From the National Intelligencer.

J ROM A VIRGINIA CORRK'TOVOENT. Tin question whether the judiciary can declare a legislative uci to be constitution;!, and thcscbie void,

1 liasDcenoi latcreviveu in it ntucxy

Jai.d discussed wit li great animation.

Into this discussion, although it be one in which all the Csles iuc concerned 1 do not mean to enter. I cannot gravely set to work to prove that a judge may rightfu ly do ihst which lit was appoint' d and soli- n.p.iy sworn to do; that is. to decide ae-

fcording to law. and of curie to de-

ci'Jc what is law. Instead ol' discussing the question,

1 1 am wiling to concede lor a tno J menu that the opponents of the jufchciary on this point, have convuic

C(S a majority ol the people, urul of the legislature ol Kentucky, huiticir doctrine In perfectly orthodox, arid that to cxtnpate the heresy which thuyhave detected and refuted, an amendment should be engrafted in the constitution of die state, by which the legislature shrdi be declared to be

exclusively the judges ol the conifur miiy ol their own acts to that constitutionIt is manifest, that sn amendment

I of the constitution ol Kentucky, on

tuis subject, could go no tanner. It might declare that the state judges should consider every act of the le. gtslature ol Kentucky as valid, in re

S lation to the state cons iiution, until I the same should be declared o her I wise by the legislature themselves. I Eut, it is obvious, that very little Eround would be covered by this amendment; that, in fact, it could not reach any part of the ground on i which stands the question, now undcr discussion in Kentucky. The collision existing there is not between a law and a constirution of that state, but between a law of tb.:t state j and the constitution of the U. States j In such cases, the state judges, tho holding their commissions and olTi , ces understate authority, have a duty ; to perform which no act of a state, I constitutional or legislative, can effect. They are bound by an oath, required ?od prescribed by the con Bt'uution olthe U. States, to support the constitution of the U. States. When, therefore, a law of a state is reht don, in any case, before a state court, and that law is alledged to be contrary to the constitution of the U. States, the discussion and the dt-ci-fcion, by such court, of the question of constitutionality, would be, obviously, without the purview and scope the supposed amendment. The mght of the state judiciary, therefore todecideon the validity of relief laws as I believe Uicy arc called and alj

other state liws, supposed to be repugnant to he c institution of the U. States wouM stand, after the amendment, just vhere it stood before the amendment So little ciuld be affected by any alteration in the constitution of state, that I am willing to submit the constitution of the U. States, (only arguendo however) to similar experiment I will not say, that an amendment to the constitution of the U. States, decla-ing Congress to be exclusively the judges of the constitutionality of their own acts, cannot be prepared. But I am very confident that their are some difficulties in the way, which hitherto have escaped notice, and that the result has not been duly consideied. Supposing the principle and terms of the proposed amendment to be agreed on, a corresponding alteration must be mde in the cath of office.

bothexecutive and judicial. Atprescot we will speak ol the latter only. J he OHth as it now stands, assumes what is universally admitted, at least in all republics that a constitution, vhie.h is the act of the nation, is paramount to a J iw which is an act of their agents, their deputies, their representatives; and thau in case of a collision between them, the latter is void. In such a case, the courte now to be pursued by the judicia y is clear: their oath and their duty exactly coincide. But if the supre. rnacy of the constitution, expressly u.-scrtcd l5! itself, and always thcoictical'y adnitted, is to be practically denied by the judiciary, whenever it is contravened by an act of Congress, it is manifest that the oath of office must be so modified as to leave th:e supremacy utterly de fenceless in that quarter where it is alone likdy to be assailed. I dubt whether (his modification can be ef fected. lean form no idea cf the terms fitted for the purpose. If Congress ate to be the only judges of the constitutionality of their own acts, a further amendment will be necessary an amendment, providing for the reversal of a judgment or proceeding, founded on a law, pronounced by that body to be unconstitutional; providing also for its revival, after being reserved, in case the lav should be re enacted, and for its reversal and revival totics, quoties, according to the ebb and flow of opinion, until the ques tion is at test. At rest the question may be ; but it cannot be definitively settled. The Congress of 1899 will have the same power that be longs to the Congress of 1329 ; and thus, at the expiration of half a century, or more, a man may get back property which was taken from his grandfather, but which, at the next tide, he may be compelled to surrender. The constitution of the U. States commenced in 1789, and the question concerning the right of Congress to appropriate money to any object connected with the common defence and general welfare, is not yet settled. Some of ourj best and wisest statesmen has been embarrassed : speaking one way and acting another. . But, supposing these difficulties removed, the consequence of adopt ing such a principle by an amendment, is such as no intelligent friend of limited government can loo, et without dismay. . . The supremacy of the constitution over a law, is as indisputable (says the report of 1899) as the supremacy of the people over the onstmiticn. This proposition is universal con

ceded to be true. It is universally admitted to be the corner stone of a free, and of course a hmin d government; yet the supposed amendment subverts it ab imo; and what is worse, admits it to be true, at the very moment of this subversion. The amendment implies the supremacy of the constitution, a.d the nullity of every act opposed to it; but this nullity, in case f a law, ca. be ascertained and proclaimed only by the body which enacted the law. This is declaring in substance that the constitution of the United State shall be the supreme law of the land, but an act of Congress shall be above the supreme law, until Cong e-s shall choose to acknowledge that an error has been committal. It is needless to dwell on this point. What can be more absurd, or more pernicious, than to prescribe limits to the exercise of legislative power, and then to leave it to the same legislature to say whether the limits have been transgressed or not. In England, the question of constitutionality never occurs. There is no constitution; there is no limitation o the legislative power ; Par. hement is omnipotent. The ConCress of the United S ates would be t qc-idly omnipotent, cccordmg to the doctrine of tins new school. liutexen this amendment would not provide lor a diss of cases nu. merous fas well as important. It would not reach the case cf a state law, relied on by one par ly in a federal Circuit Court, and objected to by die other as unconstitutional. A auppkmentary amendment, however, might be prepared, declaring that the Judges o' die United States should consider all the acts of the several slates, no matter how repugnant to the constitution of the U. States, as valid, until it should be the plea, sure ol the states to repeal the ra. All these amendments to the constitutionof the United States and to those of the states, may perhaps be expressed in writing, without con tradiction or confusion. I do not say that the thing is impossible; but I am very confident that their adep ti'jn would be the utter ruin and subversion of our whole system. The writer of these remarks is no advocate for the judicial power, as now claimed and exercised by the Supreme Court of the United States. That part of it which is exercised in an appellate form, in cases decided instate tribunals, especially where states arc parties, is not, in his humble opinion, warranted by the constitution of the United States. But of this hereafter. The question noticed above was decided afrirmatively by the Supreme Court of the United States, about thirty years ago. About the same time it was decided in the same way in the state of Virginia. Those decisions, and the coincidence between them and many subsequent decisions, affirming the same doctrine, it is admitted, do not preclude inquiry. Constitutional questions are always open. But when a question has been discussed and decided, and the dicision has been supported for such a length of time by the universal assent, or at least acquiescence, of the nation, those who impugn the doctrine thus established cannot expect to command much attention, unless it appears that they are out of the rcsch of any local or temporary interest, by which their judg. merit might be warped or misled. 1 have token up this subject at the point where former discussions, as well as I recjllcct, have It ft it4 cou-

I fined for some time past to one spot

ana almost to one posture, I have had no ch:nce to obtain the information which books mis'ht have afforded. The ideas, however, here sug gestcd, may possibly do some good. A. bVtrgtma Sept 1522.

FOREIGN.

From the Nero Tori Com. Advertiser, GREECE. Accounts from Vienna of the 18th ult. confirm the intelligence ahead received of the destruction of the Turkish fleet, and the death of the Captain Pacha. They add the following details: The chiefs of the Greek navy held a council at Ipsara, and decided on the plan which was afterwards adopted. They called upon all those who were willing to devote their lives to the public goodi mote than two hundred immediately presented themselves, and swore on the cross to execute the preconcert ed enterprize, or to die gloriously. Out of these 46 were chosen by casting lots, and received the benediction of their priests before engaging in their magnanimous design. All arrangements having been made on the first day of the festival of Bairam a Greek frigate and five vessels ap. pearrd, under a foreign flag, before the Turkish line, as though to tako a part in the rejoicings. The 200 hemes who passed for Englishmen ami Frenchmen, were well received by the enemy who allowed them to enter the port of Tschesmc, in order to anchor in the centre of the Tu'kish fleet. But scarcely had they reached that position when they carried their plan into effect. In a short time five ships of the line were on fire. The Admiral's ship ran out of the harbor all in a blaze, in the 1h pe of escaping total destruction, and run aground on the neighbouring coast of Scio where the capt. Pacha was land d, expiring. -A f'er this signal success the two hundred selfdcvo'ed patriots retired, without having experienced any loss." The enterp- ize appears to have been conceived and executed in a spirit of self devoticn worthy of the best times of ancient Greece. Capitulation of the Citadel of Athens Translated for th" Palladium. Athens, June 21. The mpitulation agreed upon between the plenipotentiaries of the Provisional Supreme Government of Greece, the Counsellors of Athens, which, reduced by the Greeks to the last extremity, sent Deputies to propose to capitulate 1. The Turks shall deliver their arms to the Greeks, without any reserve. 2. Greeks shall preserve with all their power, the honor and lives of the Turks. 3. Kach Turkish Family shall take their effects, beds, clothes, &c. 4. Of the gold, silver, pearls and jewels, the Turks shall keep half of all that belonged to them, excepting; such as may have been taken from the Christians. 5. All the Turks who wish to remain in Athens will be granied the right of residence, and for all who wish to pass to Asia, the Grecian Government will procure European vessels to convey tnem. and pay and provision for th'.-m. Signed with 22 names. ' " 1 " ' 1 U3 llank di:i:ds fousalk AT Till" ri'j.-