repugnant to the Constitution; but also one which is, by a plain and natural construction, in opposition to the fundamental principles thereof.

I consider the people of this country as the only sovereign power. I consider the legislature as not sovereign but subordinate; they are subordinate to the great constitutional charter, which the people have established as a fundamental law, and which alone has given existence and authority to the legislature. I consider that at the time of the adoption of our present Constitution, the British government was at an end in Virginia: it was at an end, because among many other weighty reasons very emphatically expressed in the first section of our Constitution, "George the Third, heretofore entrusted with the "exercise of the kingly office in this colony, had aban"doned the helm of government, and declared us out of "his allegiance and protection.' 1."

The people were therefore at that period, they were at the period of the election of the Convention, which formed the Constitution, absolved from the former kingly government, and free, as in a state of nature, to establish a government for themselves. But admitting for a moment that the old government was not then at an end, I assert that the people have a right by a convention, or otherwise, to change the existing government, whilst such ex

isting government is in actual operation, for the ordinary purposes thereof. The example of all America in the adoption of the federal government, and that of several of the states in changing their state constitutions in this temperate and peaceable manner, undeniably proves my position. The people of Virginia, therefore, if the old government should not be considered as then at an end, permitted it to proceed, and by a convention chosen by themselves, with full powers, for they were not restrained, established then a Constitution.

This convention was not chosen under the sanction of the former government; it was not limited in its powers by it, if indeed it existed, but may be considered as a spontaneous assemblage of the people of Virginia, under a recommendation of a former convention, to consult for the good of themselves, and their posterity. They established a bill of rights, purporting to appertain to their posterity, and a constitution evidently designed to be permanent. This constitution is sanctioned by the consent and acquiescence of the people for seventeen years; and it is admitted by the almost universal opinion of the people, by the repeated adjudications of the courts of this commonwealth, and by very many declarations of the legislature itself, to be of superior authority to any opposing act of the legislature. The celebrated Vattel in a passage of his, which I will not fatigue this audience by

quoting, denies to the ordinary legislature the power of changing the fundamental laws, "for, (says he,) it is necessary that the Constitution of the state be fixed."

But if the legislature may infringe this Constitution, it is no longer fixed; it is not this year what it was the last; and the liberties of the people are wholly at the mercy of the legislature.

A very important question now occurs, viz. whose province it is to decide in such cases. It is the province of the judiciary to expound the laws, and to adjudge cases which may be brought before them-the judiciary may clearly say, that a subsequent statute has not changed a former for want of sufficient words, though it was perhaps intended it should do so. It may say too, that an act of assembly has not changed the Constitution, though its words are expressly to that effect; because a legislature must have both the power and the will (as evidenced by words) to change the law, and it is conceived, for the reasons above mentioned, that the legislature have not power to change the fundamental laws. In expounding laws, the judiciary considers every law which relates to the subject: would you have them to shut their eyes against that law which is of the highest authority of any, or against a part of that law, which either by its words or by its spirit, denies to any but the people the power

to change it? In cases where the controversy before the court does not involve the private interest, or relate to the powers of the judiciary, they are not only the proper, but a perfectly disinterested tribunal;-e. g. if the legislature should deprive a man of the trial by jury-there the controversy is between the legislature on one hand, and the whole people of Virginia (through the medium of an individual) on the other, which people have declared that the trial by jury shall be held sacred.

In other cases where the private interest of judges may be affected, or where their constitutional powers are encroached upon, their situation is indeed delicate, and let them be ever so virtuous, they will be censured by the ill-disposed part of their fellow-citizens: but in these cases, as well as others, they are bound to decide, and they do actually decide on behalf of the people; for example, though a judge is interested privately in preserving his independence, yet it is the right of the people which should govern him, who in their sovereign character have provided that the judges should be independent; so that it is in fact a controversy between the legislature and the people, though perhaps the judges may be privately interested. The only effect on the judges in such case should be, to distrust their own judgment if the matter is doubtful, or in other words to require clear evidence before they decide in cases where interest may possibly warp the judgment.

From the above premises I conclude that the judiciary may and ought to adjudge a law unconstitutional and void, if it be plainly repugnant to the letter of the Constitution, or the fundamental principles thereof. By fundamental principles I understand, those great principles growing out of the Constitution, by the aid of which, in dubious cases, the Constitution may be explained and preserved inviolate; those land-marks, which it may be necessary to resort to, on account of the impossibility to foresee or provide for cases within the spirit, but without the letter of the Constitution.

To come now more immediately to the question before the court; can those who are appointed judges in chancery, by an act of assembly, without ballot, and without commission during good behaviour, constitutionally exercise that office?-The fourteenth article of the Virginia Constitution recites "that the people have a right "to uniform government; and therefore, that no govern"ment separate from, or independent of, the govern"ment of VIRGINIA, ought to be erected or established "within the limits thereof." Here then is a general principle pervading all the courts mentioned in the Constitution-from which, without an exception, we ought not to depart. If those may be judges who are not appointed by joint ballot, but by an act of assembly, the senate have in that instance more power than the Constitution intend