position, that the legislature cannot impugn the Constitution, and consequently that an act against it is void-be just,) must not a court give judgment against him?*

Nor is it a novelty for the judiciary to declare, whether an act of the legislature be in force or not in force, or in other words, whether it be a law or not.

*There are but three lines of conduct, one of which must be pursued on such an occasion,-either

1st, To refuse to decide the question at all, which would be a dereliction of duty; or

2dly, To wait for the legislature to decide whether the act be unconstitutional, which would be contrary to that article in the Constitution, which declares, that "the legislative, executive, and judiciary 66 departments shall be separate and distinct, so that neither exercise "the powers properly belonging to the other."-Since to decide whether the plaintiff or the defendant under the existing laws have a right, is a judicial act, and to decide whether the act be a void law as to a right vested or in litigation, is in fact to decide which of the parties have the right.

There remains therefore when the question occurs, but one thing to be done by the judiciary,-which is,

3dly, To decide that the act is void, and therefore that the claimant under it cannot succeed.

In many instances one statute is virtually repealed by another, and the judiciary must decide which is the law, or whether both can exist together.

The only difference is, that in one instance that which was once in existence is carried out of existence, by a subsequent act virtually contrary to it, and in the other the prior fundamental law has prevented its coming into existence as a law.

With respect to the idea that for the judiciary to declare an act of the legislature void, is to claim a superiority to the legislature,—if the legislative authority is derived from the constitution, and such a decision be a judicial act (as I have endeavoured to prove) this objection seems to be refuted.

For the reasons which I have given, I am of opinion that the fundamental act of government controls the legislature, who owe their existence and powers to it; this concludes the first point

That if the clause under consideration be unconstitutional, it is void.

II. The second point-whether it be unconstitutional, is next to be considered.

By the fourteenth section of the Constitution, "the "two houses of assembly shall, by joint ballot, appoint "judges of the supreme court of appeals, and general

court, judges in chancery, judges of admiralty, &c."

I was at first inclined to think that the insertion of the word judges between the general court and chancery, evinced an intention that the judges of the general court and those in chancery should be distinct persons; but perhaps it would be unjustifiable to rest such an opinion on so critical a construction.

However, this opinion is supported by the sixteenth and seventeenth sections.

By the sixteenth, the governor and others offending against the state, by mal-administration, corruption, &c. are impeachable before the general court. And,

By the seventeenth, the judges of the general court are to be impeached before the court of appeals. This might prove then that a judge of the general court could not, according to the Constitution, be a judge of the supreme court of appeals, because all officers (except the judges of the general court,) are to be tried before the general court; but judges of the general court, are to be tried before the court of appeals-and

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the Constitution intended to prevent a man being tried in that court of which he is a member; because in causes which might give rise to an impeachment, the judges of a court might act jointly, and the influence of partiality, or an esprit du corps, was to be guarded against.

However, to decide whether a judge of the general court could be a judge of the court of appeals, would be extrajudicial, as that question is not before the court; but this research enables me to decide the question that is before the court-that is, whether the same person can, under the Constitution, be a judge in chancery, and a judge of the general court? I think that he cannot, for these reasons

A judge in chancery is to be tried before the general court.-A judge of the general court cannot be a judge in chancery, because a judge in chancery must be tried before the general court; but if a judge of the general court be a judge in chancery, then he (a judge of the general court) will be tried in the general court, which is against the seventeenth article, which declares that a judge of the general court shall be impeached before the court of appeals.

My inference is, that a judge in chancery, and a judge of the general court, were intended under the Constitution to be distinct individuals.

This is one reason against the law; but there are others also of force. Whoever is appointed a judge in chancery under the Constitution, must be elected by joint ballot, and commissioned by the governor; neither of which requisitions have been complied with.

On the whole, I am for certifying to the court below, that the motion for an injunction be overruled, the clause under which it is prayed being unconstitutional.

JUDGE ROANE. This great question was adjourned by me from the district court of Dumfries. I thought it necessary to obtain the opinion of this court, for the government of the several district courts, who might otherwise have differed in their construction of the clause in question, and the administration of the law in this instance been consequently partial.

My opinion then was, upon a short consideration, that the district courts ought to execute this law; for I doubted how far the judiciary were authorized to refuse to execute a law, on the ground of its being against the spirit of the Constitution.

My opinion, on more mature consideration, is changed in this respect, and I now think that the judiciary may and ought not only to refuse to execute a law expressly