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Show --~· ·-~ 174 DESPOTISM departed from, the legislative intention must be expressed with irre~ istiblc clearness, t? mduce a. court of justice to suppose a design to eflect such objects." R It is thus that, in all cases of injustice attempted under the form of legislation, courts, while admitting the power of the legislature, yet reserve to them::;elves a power to defeat the wicked legislative intention, by refusing to suppose the legislature capable of any such intention. But the extent to which this indirect veto power is carried out in particular cases, must evidently depend very much upon circumstances, and especially upon the character and position of the court. Where a court is exceedingly indisposed to sec, and is so situated as to be able to give eRect to its inclinations, "irresistible clearness" is out of the question. No possible form of words can produce it. Now the disposition on the part of the court to see or not to sec a wicked intention, will depend upon two things: first, the opinion of the conrt as to the degree and aggravation of the wickedness; secondly, their opinion as to the amount of support likely to be found in the community, should an attempt be made to defeat that wicked intention. Take the case of slavery for example. Suppose that in a slave-holding community the question of the legality of slavery is raised, and certain legislative acts are quoted to sustain it. If the court should happen to entertain the opinions professed by Mr. Calhoun, that slavery is not only a blessing in itself, but the essential foundation of a republican government, of course they would see, with great facility, an intention in the quoted acts to give to slavery a 1 legal basis. Even if they entertained the more com· mon opinion, avowed by Mr. Clay, that slavery, though an evil in itself, is yet, under existing circumstances, a necessary evil, the only means of preserving the two races of whites and blacks from a war of extermination, they would still find no great difficult.y in perceiving a legislative intention to legalize slavery. But suppose the judge• have the feelings proper to IN Al\IERTCA. 175 men enl ightened and humane; suppose their eyes fully open to the ~'llOr~?US Criminality of ::slavpry; suppos~ th e;.: s~w m VIVId colors all its multiplied evds and m1sen es, both for masters and slaves-it would be very diflicult for any form of word::s toestablish, with "irresistible clearness," in the minds of such men, a_lcgislati ve i~te ntion to legalize so much f?lly and cnme. If, besides, they saw opinions hostile to slavery openly avowed and sprcadh1a around them; if they saw a certainty of bcina p~wcrfully sustained in reinstating justice on he/~ seat,-what form of word8 would be able to satil:lfy such a court that the supreme legislative authority intended to sanction a system so horribly unjust 1 At aU events, a court so constituted and so situated, would surely never discover any such intention in a case where there were either no words at all, or but very obscure and vague ones. It is the glory of the tribunals of the common law, that, even when trampled in the mud by the feet of power, they have never consented to lie there in quiet. They have struggled, always to a certain exte11t often nobly, to rise again, to cleanse the ermine robes of justice from the mire of ignorant, weak, cruel, self• eekin~; legislation, to lift again on .high the balance of eqmty, and, to the full extent of their power and theu hght, to weigh out again equal justice to all. But to enable them~o do this, the community about them must uphold their hands. What can four or five gray-haired men do against the ferocity, the wronghe~dedness, the intentional injustice of a whole comm~m.t.y 1 l\fen formed by long experience of the world 111 1ts least amiable aspect:;, will not cast their pearls before swine's feet. The sort of men who occupy the judicial bench arc seldom much inclined to ?ulrun popular opinion; yet however it may be fash~ o1_1able among them to anect to despi::;c such opinion, ~tIS none th: less true that their own views are greatly lllflue~l~ed, 1f 1~ot indeed mainly determined, by the prcvadmg senbment of the community about t)lern. |