bted, but a
question of jurisdiction and competence is certainly a question of law;
on this the court ought undoubtedly to judge, and to judge solely and
exclusively. If they judge wrong from excusable error, you ought to
correct it, as to-day it is proposed, by an explanatory bill; or if by
corruption, by bill of penalties declaratory, and by punishment. What
does a juror say to a judge when he refuses his opinion upon a question
of judicature? You are so corrupt, that I should consider myself a
partaker of your crime, were I to be guided by your opinion; or you are
so grossly ignorant, that I, fresh from my bounds, from my plough, my
counter, or my loom, am fit to direct you in your profession. This is an
unfitting, it is a dangerous, state of things. The spirit of any sort of
men is not a fit rule for deciding on the bounds of their jurisdiction.
First, because it is different in different men, and even different in
the same at different times; and can never become the proper directing
line of law; next, because it is not reason, but feeling; and when once
it is irritated, it is not apt to confine itself within its proper
limits. If it becomes, not difference in opinion upon law, but a trial
of spirit between parties, our courts of law are no longer the temple of
justice, but the amphitheatre for gladiators. No--God forbid! Juries
ought to take their law from the bench only; but it is our business that
they should hear nothing from the bench but what is agreeable to the
principles of the Constitution. The jury are to hear the judge, the
judge is to hear the law where it speaks plain; where it does not, he is
to hear the legislature. As I do not think these opinions of the judges
to be agreeable to those principles, I wish to take the only method in
which they can or ought to be corrected, by bill.

Next, my opinion is, that it ought to be rather by a bill for removing
controversies than by a bill in the state of manifest and express
declaration, and in words _de praeterito_. I do this upon reasons of
equity and constitutional policy. I do not want to censure the present
judges. I think them to be excused for their error. Ignorance is no
excuse for a judge: it is changing the nature of his crime--it is not
absolving. It must be such error as a wise and conscientious judge may
possibly fall into, and must arise from one or both these causes: first,
a plausible principle of law; secondly, the precedents of