Month: August 2021

Justice for a Fugitive Slave

I’ve often remarked that you can find anything in the Internet Archive as long as you’re not looking for it. A handwritten letter from Lucia Weston, a notable Boston abolitionist, tells the story of a fugitive slave who was caught stowing away on a New England vessel, and then released on a writ of habeas corpus, with the captain of the vessel apparently under threat of severe consequences for having falsely imprisoned the man. The letter shows how much anti-slavery feeling there already was in Massachusetts by 1836. In particular, it’s striking how the sailors rebelled against their own captain’s treatment of their unexpected passenger.

Boston Oct 4th 1836

…Dr. Farnsworth was here this morning, and he said that there is another Slave-case, he says that a coloured man got on board one of the vessels that were there one of our vessels, he went on board and hid himself under the wood, he filled his pockets full of bread and cheese and he let no one know he was there and they had got to Cape Cod before any one knew he was there then the Captain a New-England man took him and chained his armes behind him, but the sailors could not stand that so they chained him with his hand’s before: and they came into Boston and the coloured people smelt him out, but the Captain had put him in prison on pretence of his payment of 25 dollars for his passage, so Samuel S Sewall went and served out a writ of Heabus Corpus and took the man, and he has him, and the Captain has got to take it for putting the man in prison, and his passage is only worth five or six dollars! Isn’t this good!

Your Macedonian Motherland

Sometimes one runs into a perfect crank, and then one simply has to enjoy the crankiness. Here we have an essay that parades its crankiness in its title:

Macedonian – The European Mother Tongue, with dictionary of ancient words still present in today Macedonian language. The all-inclusive PIE substratum of Pelasgo-Proto-Macedonic, i.e. Nashinski (Lat. Nostratic) and its 15,000 years old continuum with explained etymological phonologies from various sources and online dictionaries link-citations. By Basil Chulev, 2018.

The author has typical Slavic difficulties with English, particularly the use of articles. But he makes himself understood well enough. He is going to argue that Macedonian, the Slavic language spoken in North Macedonia, is the ancestor of all European languages.

The preface begins with a sensible-sounding explanation that this paper is meant for the non-technical reader, but it veers into crank territory pretty quickly.

The given explanatory notes are prevalently etymological or lexicographical, free of western Eurocentric political-biased theories. Examples of how one and the same mislead is used or not to explain the continuity flow of the Macedonic languages are shown on the page 16, and further in the very dictionary below, in function to expose and debunk the western Eurocentric hotchpotch linguistics.

The hallmarks of a crank are all here in two sentences: the notion that a whole scientific discipline is wrong and that it is kept wrong by knowing conspirators; the claim that I alone (or I the member of a small minority) see this conspiracy for what it is; and the palpable anger that descends almost instantly to name-calling.

But does Mr. Chulev have a legitimate argument? We are inclined to dismiss him simply because he comes from a tiny country that most of us hardly think of. We have heard Lithuanians say that Lithuania is the fountain of all civilization. We have heard similar claims from certain Pittsburghers. But the fact that local chauvinism is a common phenomenon does not invalidate an argument that Indo-European languages originated in the Balkans. They had to originate somewhere, and doubtless the people who live there now, wherever that is, are intensely proud of their homeland.

So what kind of argument will our author make? We turn to the introduction.

He begins by stating the obvious fact that there is a family of Indo-European languages all related to one another. Then he makes an argument that the name of Macedonia would mean “World of Mother” in Sanskrit, and adds that “Boševski and Tentov (2005) have deciphered the syllabic ligature MoDeA (acronym of Mo-De(tsa)-A) as ‘Mother-Children-1st’ (i.e. the ‘Mom of Children of the Great 1st One’).”

We do not pretend to understand what this is supposed to mean, other than to say that providing a “decipherment” that is borderline nonsense, and then interpreting it by connecting the ideas with random explanatory words, is a hallmark of crank linguistics. The late Barry Fell specialized in it, but anyone can play that game; we say, with greater plausibility, that “Mother-Children-1st” means “Women and children have priority in the lifeboats.”

—Having written those two sentences, we turned to the Internet and discovered that Boševski and Tentov are indeed princes of crank linguistics, who have translated the previously untranslated middle text of the Rosetta Stone and proved that it is written in ancient Macedonian almost identical to Macedonian as it is spoken today. They are undeterred by the fact that the rest of the world regards the middle text as Egyptian Demotic, successfully translated in the nineteenth century. That our author will depend on them as reliable sources does not give us confidence.

Our author goes on to quote from Professor Bopp, whose work was hugely influential, but may be a bit outdated (the Comparative Grammar quoted here was published in 1856). That, we suppose, makes it untainted by the Russian-led conspiracy about which we will hear in a moment. We note in passing that our author makes his own deductions from Bopp’s work: when Bopp points out that the Sanskrit î in names of peoples denotes the inhabitants of a place, Mr. Chulev adds, “same as ‘Italiani’, which is how the Italians call themselves.” “Italiani” is, of course, the regularly formed plural of “Italiano,” so the i on the end denotes the inhabitants of Italy in the same way that the i on the end of “amici” denotes the inhabitants of a friend. But we can forgive the author for being even more ignorant of Italian than we are; perhaps he has made an honest mistake here that does not affect his argument.

Let us take it for granted, then, that “Macedonia” means “Mother-World.” What shall we make of that?

This notion of someones proper homeland as “Mother world” is rather common among the oldest nations. Take for example China. The Chinese don’t call their homeland “China” at all, but “Zhong-Guo”—a ‘Middle-land’ i.e. ‘Central-land’, which is pretty much the same as “Mother-land”, since the mother(land) is everyones centre of the world until the adolescence age.

Now, if we are allowed to say that “middle” is pretty much the same as “mother,” then there is no association we cannot make by finding some tenuous thread that links the two ideas. We speak of heartstrings; a banjo has strings; a banjo is pretty much the same as a heart. Tea is served hot; the sun is also quite hot; we may say that the sun is pretty much the same as tea. The one relative clause “which is pretty much the same as ‘Mother-land’” invalidates the whole argument of the paper, because, in dealing with terms everybody can understand, it shows us what the author is willing to do to make associations; and thus we know that we must doubt his conclusions even if he strays into matters of linguistics where we do not have the knowledge to dispute him.

We have already guessed that our author is going to tell us that all supposed scientific philology is wrong. But why are all the philologists in the world wrong when only our author is right? The answer is predictable but disappointing: the entire science of philology is a giant conspiracy.

Today conventional view places the homeland of Proto-Indo-European languages in the Pontic steppes about 6000 years ago. But, this is actually a later, modified version, of the original model that claimed the homeland of PIE languages in the lower Danube region. It was rewritten due to the 19th century Panslavonic political badgerring exerted by Russian scholars and institutions, which tended and still tend to refurbish and promote Russia as the all-inclusive “Proto-Slavic” homeland and center of the “Slavic” urheimat. This absurdly retrogressive initiative fitted perfectly with the western powers convulsive “lebensraum” expansionism, thus the original location of the PIE languages homeland was cheerfully renegotiated and senselessly removed further east.

It might be amusing to spend a quarter-hour imagining the conferences at which the location of Proto-Indo-European was renegotiated. The Russians are holding out for central Asia, which is within the bounds of their empire, though certainly not the heart of it. The Germans would like to say that Proto-Indo-European arose in the neighborhood of Berlin; one eccentric Frenchman is holding out for St.-Malo, though no one can understand him well enough to see why; a large English contingent insists on India, with Sanskrit as the mother tongue of all mother tongues; but eventually the Russians prevail, as they always do, by sheer force of badgerring.

In the body of the paper our author argues that genetic research proves the Indo-European languages radiated from the Macedonian Peninsula, by which he means the Balkans. We do not pretend to be able to judge this claim; we can only say that the majority opinion, as expressed in Wikipedia (which is part of the conspiracy), does not support it. Curiously, our author refers to the supposedly exploded theory of a central-Asian origin as “Eurocentric,” whereas his own theory of Balkan origin is apparently not Eurocentric. We do not pretend to understand this distinction. Perhaps “Eurocentric” is just a polysyllabic technical synonym for “bad.”

As we come into the body of the argument, though, we begin to see what is really going on here. A big clue is the way our author keeps misspelling the names of Greece (“Grease”) and Greeks in insulting ways, putting the spellings in quotation marks to let us know that he knows what he is doing. It is erroneous, he says, to use the term Greek for them; our author refers to them as “the later Semitic Danaans (erroneously called ‘Greex’).” When we hear the word “Semitic” here, we begin to think we understand our author better.

We will not spend a great deal of time analyzing his arguments here; we will make some glancing observations instead. When, for example, he mentions the Linear B script as “still undeciphered,” our author does not even acknowledge that the rest of the world seems to think that it has been deciphered, and that it proved to be Greek. Greek is a Semitic language, apparently. But Koine, the common language introduced by the Macedonian conquerors, seems to be Slavic. We could perhaps puzzle this out if we could bring ourselves to do more than skim the arguments.

The point of it all is this: “The evidences brought to a conclusion that the ancient Macedonians, Pelasgians, Hyperboreans, and Hittites were the first Indo-Europeans, a part of the larger Indo-European urheimat of Asia Minor, Macedonian Peninsula (i.e. “Balkans”) and Central Europe, and that their Macedonic language was and still is one of the oldest idioms known to humanity, which at the same time throws a new light on the oldest history of the Macedonian ethnos and civilization.”

In other words, you have Macedonia to thank for all of European civilization. You’re welcome. And those filthy “Greex” had nothing to do with it.

As a further specimen of crank linguistics at work, here are three translations of ancient Thracian texts, which prove to be pure Macedonian:

At the center of the city, I quickly gave cabbage to the beast mouth.

Nephew, are you satiated? Sit here and sip that juice.

If god has fire, you stay here girl and guard wisely at home.

These are the things ordinary Macedonians still say to each other every day.

(Do not suppose, dear reader, that we chose the three silliest examples of the lot just to make fun of our author. These were the only three examples he gave; they are obviously his best examples.)

From here we descend into the usual crank linguist’s netherworld of proofs by word association. A fair specimen is our author’s analysis of the term “barbarian” as “(Barb)Aryan.” The crank theories multiply. Latin, for example, was never a spoken language, but a purely administrative one. (In crank world, people make up purely administrative languages all the time and then impose them on conquered peoples.) “The crowning proof of this” (our author is quoting another Macedonian crank linguist) “is the following: there is very little (or none!) variation of the Latin language in time and space…” Whereas, the argument goes, a living language would change and fragment into dialects. That never happened with Latin; therefore it was not a spoken language. At this point we feel as though we ought to make some remark about the Romance languages, but we wonder whether the Romance languages exist in the alternate reality that is Macedonian linguistics.

And that is really the point of reading things like this. Now we understand North Macedonia a good deal better. In the rest of the world, these claims are laughable eccentricities. But a look here and there on the Internet shows that, in North Macedonia, they are true. They are what you hear on the television. They are what you read in the papers. Macedonian really is the mother language. The Rosetta Stone really was written in Macedonian. Boševski and Tentov really are in the pantheon of great discoverers. Greeks really are Semites (which we may translate as “Jews in all but name”) who had nothing to do with the glories of Mediterranean civilization. People in India, England, Spain, and Norway really do speak dialects of Macedonian.

Not everyone in North Macedonia believes these things, of course. But the beliefs seem to be prevalent enough that doubting them could cause some unpleasant confrontations.

Most of us will probably never visit North Macedonia, so we will not need to worry about the Macedonians’ feelings on these subjects. But the real lesson is not that Slavic Macedonians believe absurd things about their own past. The real lesson is that people believe absurd things when they want to believe them, and we are not exempt from that rule. We can laugh at the absurdities of others, but what are they laughing at in us?

This article originally appeared in Literary Discoveries, the blog of Dr. Boli’s Eclectic Library.

Toy Letters in the Late 300s

This is the sort of tiny detail that jumps out at me from ancient writings, because it draws a picture of daily life that would otherwise be invisible to us. Gregory of Nyssa describes the hard life of an honest farmer:

“He was one of those farmers who are always bent over the plough, and spend a world of trouble over their little farm; and in the winter, when he was secured from agricultural work, he used to carve out neatly the letters of the alphabet for boys to form syllables with, winning his bread with the money these sold for.” ——Against Eunomius, I.6.

Now I know that little boys in the eastern part of the Roman Empire used to play with toy wooden letters in Gregory of Nyssa’s time (he wrote Against Eunomius in about 380).

When “Modern” Is Old-Fashioned

A friend points to an article in Archaeology: “Modern Human Burial in Spain Dated to Upper Paleolithic Period.” His remark: “My notion of modern is outdated.”

“Modern” is a strange term. In some contexts it means “middle twentieth century.” In some contexts it means “having to do with Homo sapiens sapiens.” In some contexts it means “Renaissance and after,” as opposed to “antique,” the Middle Ages being presumed to be a big blank space. There are some unusual cases where it even means “late” or “recent.” And Dr. Johnson points out that in Shakespeare it can mean “vulgar; mean; common.”

I suppose the thing that prevents it from falling into utter meaninglessness, like “transgressive,” is that it always means something specific in a given context. An art historian means something definite by “modern”—namely, a style of art that died out about fifty years ago, having been fashionable “during the period extending roughly from the 1860s to the 1970s,” as Wikipedia puts it. A paleontologist means something definite by “modern human”—namely, a creature of our own species. Once you establish the context, you can have a meaningful conversation.

But it does confuse people outside your discipline. “No, I mean modern art. You know, the old-fashioned stuff.”

The Wiktionary article on “modern” offers only two meanings—one of them “recent,” and the other a meaning I didn’t come up with, namely “Pertaining to the modern period (c.1800 to contemporary times), particularly in academic historiography.” Merriam-Webster does a little better, adding “of or relating to modernism,” and one of the definitions of “modernism” is “modern artistic or literary philosophy and practice…especially : a self-conscious break with the past and a search for new forms of expression.” But neither Wiktionary nor Merriam-Webster is remotely adequate in describing how the word is used today, or for that matter how it’s been used at any given period. Neither one even mentions the meaning on which the Wikipedia article on “Modern art” is based.

I think “modern” has so many meanings because there are really two underlying meanings: “right” and “wrong.” The great division in human thought is between the people who place the golden age in the future and the ones who place it in the past. (Every two-party system in politics seems to be based on that division.) For the modernist, it’s obvious that our age, with all its technical and intellectual improvements, has got things figured out. Therefore the current style is the right style. For people of conservative tastes, “modernism” is a heresy; the word encapsulates everything that is wrong with the world today, and we can save ourselves only by going back to the good old values of the good old days. As the argument progresses, both sides define which characteristics are “modern,” and modern comes to mean having those characteristics (as in the Merriam-Webster definition, “a self-conscious break with the past and a search for new forms of expression,” which described current fashion only at a particular time in history). Then those characteristics go out of fashion, and we’re left with terms like “postmodernism” and “post-postmodernism” to describe the current fashion—terms that give up on the notion of “modern” as “recent” and acknowledge that “modern” means having a particular set of characteristics that used to be fashionable.

All this means that you have to be careful of your audience when you use the word “modern.” A general audience, even a fairly intelligent one, may assume that you mean “art of today” when you say “modern art.” An intelligent reader may be puzzled if you use the term “modern” to mean “from 14,000 years ago” without some introductory explanation. It’s very easy in any discipline to absorb the jargon and think that everybody knows what it means. But there was a time when you didn’t know, and you were horribly embarrassed. You can spare other people that embarrassment with a little thoughtful explanation, without making things too dreary for people who do already know the terminology.

Brackenridge on the Right of the Judiciary Power to Judge of the Constitutionality of a Law

Hugh Henry Brackenridge was a judge in the Pennsylvania Supreme Court. He was also the first great literary figure of Pittsburgh, where he moved in 1781 and singlehandedly founded a literary culture that continues to this day (one of his foundations being the Pittsburgh Gazette, whose descendant, the Post-Gazette, still straggles on as the second-oldest metropolitan newspaper in America). In this article, he considers the question of whether a Pennsylvania court can declare a law unconstitutional and therefore void. The argument includes the same question with reference to the national government. Brackenridge comes down firmly on the affirmative side of the question, which has become orthodox American and Pennsylvanian legal theory.

March, 1804.

It has been made a question, whether the judicial branch of the government, has authority to compare legislative acts with the constitution, and, in any instance, be able to pronounce an act to be contrary to the constitution, and therefore void? I do not rest upon the argument, that it is in the oath of office of a Judge, “to support the constitution.” For, all officers, executive arid judicial, are bound, “by oath, or affirmation, to support the constitution.”

It does not follow that the clerk of a court, who takes the oath, has authority to determine on the constitutionality and obligation of an act of the legislature. It cannot, therefore, be on the ground of having taken an oath, that this right accrues, or obligation is possessed: It must be shewn to be the duty of the office. By Art. 8. of the Constitution, the oath of affirmation is prescribed to all officers, “to support the constitution, and perform the duties of their respective offices with fidelity.”

All admit, that the constitution is the law paramount; but who are the legitimate expositors of its extent? the people, doubtless, the framers of the compact. But, through what organ is their exposition to be known? Who is to give the explanation, or affix the comment? the members of the legislative branch are sworn “to support the constitution.” This involves the enacting laws within its circumscription, and authority. At the expiration of the period for which they were chosen, it is in the power of the people to express their sense against a law, by choosing others, and procuring a repeal. But in the mean time, are they at the mercy of an unconstitutional law? Are the judiciary bound to carry into effect a law against the prohibitions of the constitution? Does the safety of the community require that the judiciary branch shall exercise a co-ordinate authority with the legislative, to judge of the constitutionality of a law? That the legislative branch may trespass upon the constitution is admitted. In the case of a general law, it is more likely to be felt, than in that of a law affecting a portion of the community. But, even in the case of a general law, the injury is not always felt at once. On the contrary, immediate convenience may render it agreeable, though hurtful in the ultimate operation.

But admit the power of the judiciary to arrest the execution of a law, and you admit the power in all cases. The answer is, that there is no temptation to exercise the power wantonly; no motive; no object. It is, on the contrary, an ungrateful task. The danger is the flinching from duty, awed by the law-making power for the time being, and the popular opinion of the day. The undertaking is arduous, and requires fortitude. It is not reasonable to suppose, that men will encounter it from the mere abstract pride of exercising power without some advantage. At least, on the common principle of self-love, the presumption is against it.

It may be argued, that without this power in the judiciary, the use of exceptions, and restrictions in the constitution, will be much lessened. The constitution will vary with the flux and re-flux of representation, in the legislative body; whereas, by the judicial negative, not in the making, but in the execution of a law, there is a double security. It would seem, therefore, that the judiciary is not a mere subordinate functionary in the administration of the laws, but a branch of the government itself, co-ordinate with the law-making power, and bound to regard the constitution, and compare the law of the legislature, with the superior law of the people.

But, can it be the duty of the judiciary to resist the will of the law-making power, when two thirds of that power can remove from the judicial office? or to assist the will of the law-making power for the time being, in carrying into effect a law against the provisions of the constitution, when, on a change of administration, two thirds can remove for so assisting? This is a dilemma, and proves, at least, that it must be in the case of a law, against the express provisions of the constitution, that the judiciary are bound to interpose.

But, suppose a law against an express provision of the constitution, are the judiciary bound to execute? When the people come forward in election, and displace a delegation, will it justify the judiciary to say, we obeyed the law-making power for the time being?.… or rather, will not the people, by the new delegation, say, you were appointed learned in the law, furnished with a written instrument, the magna charta, the great paper of our liberties, and yet with this document, before you, you have carried a law into effect against the express provisions of it. You have betrayed your trust; you have not supported the constitution. It would seem to follow that the courts have a right to deliberate, and judge upon a law.

But, can the new delegation call themselves the people, any more than the former? Can it be a misdemeanor to execute a law of the law-mating power? Is not obedience to the will of the representation de facto excused? Will not resistance to the will, of the representation de facto be punished! How can the people, but by representation, come forward, and make their will known? Sit in judgment on the judiciary, and say, you have abused your trust, or fulfilled your duty. It would seem, therefore, that a legislative exposition, by a law, must be taken for the time being, to be the exposition of the people.

But, in the very nature of the establishment of the courts of justice, the people have entrusted the right of exposition, in the last resort, with these courts, and vested the judiciary, with the light paramount, to judge of the construction of the constitution. Why, then, at the same time, subject the judiciary to the law-making power, by impeachment; or by removal, for causes which may not furnish ground of impeachment ? Contrariety of exposition will be said to furnish cause of removal, or of impeachment itself; and determine the tenure of good behaviour.

But this supposes a perversion of the power of removal or impeachment. But what remedy? Appeal to the people. But a convention in the case of a questionable law, is not contemplated by the compact. Nor would it be convenient. It must rest with the constituted and subordinate authorities; exclusively with the law-making power, consisting of the two houses, the annual, and quadrennial, with the qualified negative of a triennial executive; or, concurrently with the judicial power, of unlimited, but conditional permanency, in an absolute negative in the execution. It is a point of constitutional law, which rises in magnitude in proportion as I contemplate it.

Whether the law-making power emanating more, immediately from the people, and, at stated periods revocable by them, shall legislate uncontroulably, under its own construction of the constitution; or, whether the more remote but more permanent power of the judiciary, shall exercise a judgment, either in cases, where the law-making power shall invade the constitution with sinister intentions, if we can suppose that possible; or, what is more likely to happen, when it may arise from an uninformed spirit of reform. It would seem, that in such cases, the judicial negative might be a desideratum, an auxiliary check, a collateral guard of equal rights against unequal laws. It was, in fact, the understanding at the formation of the constitution; or, by some means has come to be the understanding since, that the judiciary possess this power. It has been thought to be a great point gained in the science of government. The judiciary has been thought to be more with us, than under the British constitution, a mere expounder and administrator of the law, in matters of meum and tuum, or of the criminal code. Its highest function was thought to be the testing laws by the constitution. The theory is good; but can it be reduced to practice? Existence at the will of the law-making power even in a qualified manner, and at the same time, a controul over it, is what I cannot well reconcile more especially, as the power of the legislature over the judiciary, is expressly given, and that of the courts over the will of the legislature, can be but by construction and the exposition of the courts themselves. Can it exist but by courtesy? Can it be a duty, which carries with it official suicide? We may try a principle by enquiring, can it be carried into effect?

The structure of our state constitution is similar to that of the United States. Yet there are arguments in support of a similar power under the constitution of the United States, which do not exist under the state constitution.

By the constitution of the United States, the judicial power is limited to cases arising under “the constitution, and the laws.” In the debates in the conventions of the several states, on the adoption of the constitution, was not the power of the judiciary to test the laws by the constitution, considered as a principle of the system? Through the medium of the press, it was certainly the comment.

It was considered as a principle giving security, conferring stability; as, in itself a bill of rights. Has not the legislature of the Union recognized the principle in the law constituting the courts, and which prescribes the judicial oath, that they perform the duties of their office, agreeably to the constitution and the laws.” The courts of the United States have acted under this idea, and declared laws void. No protest on the part of the legislature of the Union: no dissent on the part of the states by moving for an explanation by amendment to the constitution. It would seem, therefore, to be an authority expressly given or conceded.

Under the state constitution, there is nothing said of the extent of the judicial power, but, in these words, “The several courts, besides the powers heretofore usually exercised by them, shall have” &c. Was this a power usually exercised before the constitution, or is the power drawn by construction from the compact, under the idea, that the constitution is the first law, and that it is the province of the judge, to expound, and to execute the laws.

“Powers usually exercised,” are terms which may not include the power in question: but, it may be argued, that it was not thought of; or, that a power of so high a nature would have been specially designated. Yet, to say, that the constitution is directory to the law-makers only; and that courts and juries have no interposition against subordinate law, in favour of constitutional right, is an imperfection, which nothing but the impracticability of a contrary principle, can reconcile with a wise ordination.

The protection of the judiciary, should it exercise the discretion, and risk this peril of setting itself in opposition to a particular law, must be in the understanding of the people.

Hence, it would seem, that it must be no ordinary case, that will justify an interposition. It must be such a case, as, upon a fair investigation, will carry with it the sense of the great body of the community. It mustÏ be a case of such gross outrage upon the letter of the constitution, as, in moral probability will reach the understanding of the mass, and induce the sovereign, the people themselves to instruct their representatives in the legislature. The authority of opinion must govern; and on an appeal to a court and jury, by a party, from a constitutional violation, in a plain and simple case, I might deem it practicable to support the privilege.

In the case of a law of the United States, it will be found, that a power in the state courts, and in the courts of the United States, to resist the execution of a law on the ground of unconstitutionally, is necessary to individual, or state right. And the same power in the state courts, with regard to our state constitution, though it may be the spirit of the time to frown upon it, and to run it down, may come to be understood and acknowledged as an essential principle of freedom. This will depend somewhat upon the wisdom of the application. The exercise of this power, in a case of abstract deduction, and not immediately comprehensible by the common mind, may excite a prejudice, and fix the public mind against it. That may be lost in practice, which exists in contemplation.

In the case of a law of general policy, there will be less reason for the application of this power; because, being felt by the whole community, and the operation found obnoxious, the majority can procure a repeal. But even in the case of a majority approving and persisting to support, the minority has still its rights, under the constitution, and an appeal may be contemplated. But it is in the case of a special law chiefly, that an appeal will be found necessary, or practicable. Because a special law, affecting an individual, or corporate body, a particular district, or portion of the community, may more easily be pushed upon the legislature, by a party interested, and a repeal less easily procured. It would seem reasonable, therefore, that in the case of a special law, an appeal to the courts of justice should exist, where the party aggrieved can be heard by themselves, or by council; and maintain a private right.

Under the constitution of the Union, the individual states, will look to the judiciary of the Union, to be heard and protected from powers not given. They will look to their state judiciaries in the first instance, where the jurisdiction is concurrent. No state, or citizen of a state, will say that they have not the barrier of a judiciary between them and the encroachments of the Union. The judiciary of the Union must have these powers, or they cannot afford the protection.

Under the constitution of the state, there must be the same rights to the parties to the compact. For, in the one case specified powers are given, in the other rights are reserved. But an individual of the state commonwealth, has not the same power to assert right. For the body politic of a state has more strength with regard to the Union, than a citizen with regard to a state. The legislature of the Union will not dare to question the right of a state, or of the citizens of a state to an appeal from a law to tribunals of law. But the law-making power of a state can bear down this privilege, and it may be that a law of the administration, for the time-being, cannot be resisted. But speaking of the power abstractedly constitutional, there can be no doubt.

Taking it for granted, then, that a power of this nature in the courts of justice springs from the constitution, and is necessary for its preservation, it is evident that it must be a clear case that will justify the use of it. A transgression of an express provision of the constitution, an infraction obvious to every one. Like the light of the sun it must strike every observer. The judge who shall undertake to pronounce a law unconstitutional, must himself be well persuaded of it. He must have no doubt. He must have such reasons before him as will carry with them unanswerable evidence, and will force general conviction. He must consider, that what he undertakes, is to set aside an act of the legislature, and that for this, he, in fact, puts himself upon the country.

——Reprinted in Brackenridge’s Gazette Publications, 1806.