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JAMES THOMPSON CALLENDER. 869

is in the case before them; and not to decide whether a
statute of the United States produced to them, is a law or
not, or whether it is void, under an opinion that it is wncon-
stitational, that is, contrary to the Constitution of the United
States. I admit that the jury are to compare the statute with
the facts proved, and then to decide whether the acta done
are prohibited by the law; and whether they amount to the
offense described in the indictment. This power the jury
necessarily possesses, in order to enable them. to decide on the
guilt or innocence of the person accused. It is one thing to
decide what the law is, on the facts proved, and another and
a very different thing, to determine that the statute pro-
duced is no law. To decide what the law is on the facts, is
an admission that the law exists. If there be no law in the
ease, there can be 10 comparison between it and the facts;
and it is unnecessary to establish facts before it is ascer-
tained that there is a law to punish the commission of them.

The existence of the law is a previous inquiry, and the in-
quiry into facts is altogether unnecessary, if there ia no law
to which the facts can apply. By this right to decide what
the law is in any case arising under the statute, I eannot con-
eeive that a right is given to the petit jury to determine
whether the statute (under which they claim thig right) is
constitutional or not. To determine the validity of the stat-
ute, the Constitution of the United States must necessarily
be resorted to and considered, and its provisions inquired
inte,. It must be determined whether the statute alleged to
be void, because contrary to the Constitution, is prohibited
by it expressly, or by necessary implication. Was it ever
intended, by the framers of the Constitution, or by the people
of America, that it should ever be submitted to the examina-
tion of a jury, to decide what restrictions are expressly or
impliedly imposed by it on the national legislature? I can-
not possibly believe that Congress intended, by the statute,
to grant a right to a petit jury to declare a statute void. Tho
man who maintains this position must have a most contemp-
tible opinion of the understanding of that body; but I be
lieve the defect lies with himself.

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