Page:American Historical Review vol. 6.djvu/740

730 Documents diet that awarded them. To this case therefore the objection does not apply. On the 30! of June 1825 Mr Brougham applied for a remission of the fines imposed by the Court on Richard Carlisle for libels, amount- ing to 1500 £,. The fines were remitted in Sep.' without impeaching the Judgement of the Court ; upon which no opinion was passed either by the house or the Ministers. 2. Without impugning or alluding to the Judgement of the Court [may] not the house doubt of their own power to pass the act, and there- fore remit the fine because they disapprove of the Law passed by them- selves without regard to the Judgement of the Court ? I ask them to rec- tify their own mistake, not the mistake of the Court 3! To doubt of the correctness of a mere Nisi prius opinion, not founded on any solemn decision of the Supreme court, never considered here or in England as settling the Law on any question, still less on a question of this manifest importance, is no impeachment of or resistance to the rights of the Judiciary ultimately to pass upon the question. To say that a law is not constitutional, whose constitutionality has never been argued before [the Su]preme court, is not creating any conflict with judicial authority. [Vh]ere will you stop? If a nisi prius de- cision on a point suggested and never argued even at nisi prius is bind- ing, would not the objection taken in my Case lie even to an obiter dic- tum — a transitory assertion — a mere suggestion ? I contend that the rule of non-interference applies only to those points that have been solemnly adjudged on argument before the supreme court as the tribunal of last resort. To say that the legislature of the Country have no right to give an opinion or express a doubt on the hasty suggestion of a judge in a cir- cuit case, is degrading them before the judiciary power to an extent that can hardly be contended for. But this is my case. The question was not argued before Chase, nor carried up, because the temporary pre- dominance of party feelings at the time, gave little hopes for success, and the expence and trouble of an argument at Washington would be far more grievous than the fine. 4. Where the opinions of the Legislature and the Judiciary are likely to be at variance, the predominant power claimed by the Judiciary- ought to [be cle]ar and beyond a doubt : it ought to be claimed not in a du- bious but manifest case, and when opposed to the rights of the people as insisted on by the Representatives of the People, it should be construed strictly to be construed reasonably. Under this rule of construction it cannot apply to a mere nisi prius decision. Such are the only expedient arguments I can suggest under existing circumstances. But if the power of the Judiciary be not curtailed, the liberties of the people are gone. To make every class of constitutional authorities subservient to a power under Presidential bias if not controul placed far above, aloof from the people — who have no point of contact or intercourse, no sympathy with the people — who may commit injuries and give rise to grievances which the people complain of in vain, for they complain to a powerless, prostrated [House] of Representatives — thus to