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this diversity of independent decisions must disorganize the Government of the Union, and even decompose the Union itself.

Against such fatal consequences the Constitution undertakes to guard 1. by declaring that the Constitution & laws of the States in their united capacity shall have effect, anything in the Constitution or laws of any State in its individual capacity to the contrary notwithstanding, by giving to the Judicial authority of the U. S. an appellate supremacy in all cases arising under the Constitution; & within the course of its functions, arrangements supposed to be justified by the necessity of the case; and by the agency of the people & Legislatures of the States in electing & appointing the Functionaries of the Common Govt whilst no corresponding relation existed between the latter and the Functionaries of the States.

2. Should these provisions be found notwithstanding the responsibility of the functionaries of the Govt of the U. S. to the Legislatures & people of the States not to secure the State Govts against usurpations of the Govt of the United States there remains within the purview of the Const? an impeachment of the Executive & Judicial Functionaries, in case of their participation in the guilt, the prosecution to depend on the Representatives of the people in one branch, and the trial on the Representatives of the States in the other branch of the Govt of the U. S.

3. The last resort within the purview of the Const! is the process of amendment provided for by itself and to be executed by the States.

Whether these provisions taken together be the best that might have been made; and if not, what are the improvements, that ought to be introduced, are questions altogether distinct from the object presented by your communication, which relates to the Constitution as it stands.

In the event of a failure of all these Constitutional resorts against usurpations and abuses of power and of an accumulation thereof rendering passive obedience & nonresistance a greater evil than resistance and revolution, there can remain but one resort, the last of all, the appeal from the cancelled obligation of the Constitutional compact to original rights and the law of self-preservation. This is the Ultima ratio, under all Governments, whether consolidated, confederated, or partaking of both those characters. Nor can it be doubted that in such an extremity a single State would have a right, tho' it would be a natural not a constitutional Right to make the appeal. The same may be said indeed of particular portions of any political community whatever so oppressed as to be driven to a choice between the alternative evils.

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'The Writings of James Madison, Hunt ed., Vol. ix, pp. 383-7.

XVII

THE NATURE OF JUDICIAL POWER

What is judicial power? It will not do to answer that it is the power exercised by the courts, because one of the very things to be determined is what power they may exercise. It is, indeed, very difficult to find any exact definition made to hand. It is not to be found in any of the old treatises, or any of the old English authorities or judicial decisions, for a very obvious reason. While in a general way it may be true that they had this division between legislative and judicial power, yet their legislature was, nevertheless, in the habit of exercising a very large part of the latter. The House of Lords was often the Court of Appeals, and Parliament was in the habit of passing bills of attainder as well as enacting convictions for treason and other crimes.

Judicial power is, perhaps, better defined in some of the reports of our own courts than in any other place, and especially so in the Supreme Court of the United States, because it has more often been the subject of comment there, and its consideration more frequently necessary to the determination of questions arising in that court than anywhere else. It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision. (Mr. Justice Miller, Lectures on the Constitution of the United States, 1891, pp. 313-314.)

As to what is meant by the phrase "judicial power," see Callanan v. Judd, 23 Wisconsin, 343, 349. Also charge of Judge Nelson to grand jury of the Circuit Court, 1851, that it is the power conferred upon courts in the strict sense of that term; courts that compose one of the great departments of the government; and not power judicial in its nature, or quasi judicial, invested from time to time in individuals, separately or collectively, for a particular purpose and limited time. 1 Blatchford, 635. Gilbert v. Priest, 65 Barb. 444, 448. (Mr. Justice Miller, Lectures on the Constitution of the United States, 1891, p. 313, note.)

It appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: (Lord Chief Justice Coke, in Doctor Bonham's Case, & Co. Rep. 113b, 118a, decided in 1610, English Reports, Full Reprint, Vol. LXXVII, King's Bench Division, VI, 1907, p. 652.)

Even an Act of Parliament, made against natural equity, as to make a man Judge in his own case, is void in it self, for jura naturæ sunt immutabilia, and they are leges legum. (Lord Chief Justice Hobart in Day v. Savadge, Hobart 85, 87, decided in 1615, English Reports, Full Reprint, Vol. LXXX, King's Bench Division, IX, 1907, p. 237.)

And what my Lord Coke says in Dr. Bonham's case in his 8 Co. is far from any extravagancy, for it is a very reasonable and true saying, that if an Act of Parliament should ordain that the same person should be party and Judge, or, which is the same thing, Judge in his own cause, it would be a void Act of Parliament; (Lord Chief Justice Holt, in The City of London v. Wood, 12 Mod. 669, 687-688, decided in 1702, English Reports, Full Reprint, Vol. LXXXVIII, King's Bench Division, XVII, 1908, p. 1602.)

The great and chief End therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property. To which in the state of Nature there are many things wanting.

First, There wants an establish'd, settled, known Law, received and allowed by common Consent to be the Standard of right and wrong, and the common Measure to decide all Controversies between them. For though the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biassed by their Interest, as well as ignorant for want of Study of it, are not apt to allow of it as a Law binding to them in the application of it to their particular Cases.

Secondly, In the state of Nature there wants a known and indifferent Judge, with Authority to determine all Differences according to the established Law. For every one in that State being both Judge and Executioner of the Law of Nature, Men being partial to themselves, Passion and Revenge is very apt to carry them too far, and with too much Heat, in their own Cases; as well as Negligence, and unconcernedness, to make them too remiss in others Mens.

Thirdly, In the state of Nature there often wants Power to back and support the Sentence when right, and to give it due Execution. They who by any Injustice offended, will seldom fail, where they are able, by Force to make good their Injustice; such Resistance many times makes the Punishment dangerous, and frequently destructive, to those who attempt it. (John Locke, Two Treatises of Government, 1690, Book II, Ch. IX, Sections 124-126, Works, Edition of 1714, Vol. II.)

This writ is against the fundamental principles of law.

As to Acts of Parliament. An act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive Courts must pass such acts into disuse. 8 Rep. 118 from Viner Reason of the common law to control an act of Parliament. Iron manufacture. Noble Lord's proposal, that we should send our horses to England to be shod. (Argument of James Otis in Paxton's Case on Writs of Assistance, 1761,

Works of John Adams, Vol. 2, 1850, pp. 521-522.)

The law was laid down in the same way, on the authority of the above cases, in Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 1741-51, from which Otis quoted it; and in Comyn's Digest, published 1762-7, but written more than twenty years before. And there are older authorities to the same effect. So that at the time of Otis's agreement his position appeared to be supported by some of the highest authorities in the English law.

The same doctrine was repeatedly asserted by Otis, and was a favorite in the Colonies before the Revolution. There are later dicta of many eminent judges to the effect that a statute may be void as exceeding the just limits of legislative power; but it is believed there is no instance, except one case in South Carolina, in which an act of the Legislature has been set aside by the courts, except for conflict with some written constitutional provision.

The reduction of the fundamental principles of government in the American States to the form of written constitutions, established by the people themselves, and beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Constitution as the fundamental law and disregard the statute. This duty was recognized, and unconstitutional acts set aside, by courts of justice, even before the adoption of the Constitution of the United States. Since the ratification of that Constitution the power of the courts to declare unconstitutional statutes void has become too well settled to require an accumulation of authorities. But as the office of the judiciary is to decide particular cases, and not to issue general edicts, only so much of a statute is to be declared void as is repugnant to the Constitution and covers the case before the court, unless the constitutional and unconstitutional provisions are so interwoven as to convince the court that the legislature would not have passed the one without the other. (Mr. Justice Gray, Were the Writs of Assistance Legal, 1865, in Quincy, Massachusetts Reports, 1761-1772, Appendix 1, pp. 526-530.)

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law. (Chief Justice Marshall in Osborn v. United States Bank, 9 Wheaton, 738, 866, decided in 1824.)

The judicial power mentioned in the constitution, and vested in the courts, means the power conferred upon courts ordained and established by and under the constitution, in the strict and appropriate sense of that term-courts that compose one of the three great departments of the government prescribed by the fundamental law, the same as the other two, the legislative and the executive. (Mr. Justice Nelson on The Fugitive Slave Law, 1 Blatchford, Appendix, p. 644, decided in 1851.)

The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. (Chief Justice Taney in Gordon v. United States, 117 United States, 697, 702, decided in 1864.)

In the Constitution are provisions in separate articles for the three great departments of government-legislative, executive and judicial. But there is this significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers.

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On the other hand, in Article III, which treats of the judicial department find that section 1 reads that "the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the Nation.

Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts all the judicial power which the Nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the Nation, no matter who may be the parties thereto. (Mr. Justice Brewer in Kansas v. Colorado, 206 United States, 46, 81-83, decided in 1907.)

CHAPTER XVII

THE NATURE OF JUDICIAL POWER

Influence of

As heretofore suggested, the statesmen of the Constitutional Convention The appear to have read and deeply pondered Montesquieu's Spirit of the Laws, Montesquieu and the great and conscious division of the more perfect Union into three departments appears to be due largely to Montesquieu's influence and to be traceable to the Spirit of the Laws, and more especially to the following passage:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals."

The Articles of Confederation created a union intended to be perpetual; but it contented itself with an association of the States, without creating an agency to make that association effective, even for the specified purposes. The Congress was the legislative department, but its acts were in the nature of recommendations, rather than laws in the ordinary sense of the word. There was no executive department, unless the Congress is to be considered an executive, which, however, could not carry into effect the laws which it enacted. There was no Judiciary, although the ninth of the Articles of Confederation authorized and the Congress in fact did establish a Court of Appeal for prize cases, which, as we have seen in the famous case of The Active, overruled a decision of the Pennsylvania prize court, a form of judiciary which was, however, unable to carry its decision into effect. The same article, recognizing the necessity of judicial settlement of disputes between 1 Montesquieu, The Spirit of Laws, English translation, 1756, Vol. I, Book XI, Chap VI, P. 165.

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