Page:Lectures on the French Revolution of John Acton.djvu/48

36 Virginia. At Richmond, in 1782, Judge Wythe said: "Tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection when, those who hold the purse and the sword differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them. If the whole legislature an event to be deprecated should attempt to overleap the boundaries prescribed to them by the people, I, in administering the justice of the country, will meet the united powers at my seat in this tribunal, and, pointing to the Constitution, will say to them: 'Here is the limit of your authority; hither shall you go, but no further.'" The Virginian legislature gave way, and repealed the act.

After the Federal Constitution was drawn up, Hamilton, in the seventy-eighth number of the Federalist, argued that the power belonged to the judiciary; but it was not constitutionally recognised until 1801. "This," said Madison, "makes the judiciary department paramount, in fact, to the legislature, which was never intended, and can never be proper. In a government whose vital principle is responsibility, it never will be allowed that the legislative and executive departments should be completely subjected to the judiciary, in which that characteristic feature is so faintly seen." Wilson, on the other hand, justified the practice on the principle of the higher law: "Parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this superior authority binding upon the courts of justice? When the courts of justice obey the superior authority, it cannot be said with propriety that they control the inferior one; they only declare, as it is their duty to declare, that this inferior one is controlled by the other, which is superior. They do not repeal an act of Parliament; they pronounce it void, because contrary to an overruling law." Thus the function of the judiciary to be a barrier against democracy, which, according to