proceedings before a promiscuous concourse of bystanders, and the members of the law profession. In the presence of such an assembly, where the impartial opinion of the intelligent bar will guide the less intelligent though equally impartial public, the judge will fear to indulge his dishonest wishes; as in so doing he must encounter, what few can support, the censure of his equals and the reproaches of his country. 3. A competent and a fixed provision for the support of the judges is of great importance. "For in the general course of human nature, a power over a man's subsistence amounts to a power over his will." But what precautions should be taken on this subject? In some cases, permanent salaries have been established for the judges. But one may easily see that a provision to this effect is rendered inadmissible in a constitution, by the frequent fluctuations which take place in the value of money, and in the state of society. It is seen to be still more inexpedient, when we consider that every succeeding age is more and more luxurious and extravagant; so that in process of time, that may be looked upon as exceedingly penurious, which is abundantly competent now. It seems the most prudent to leave it to the discretion of the legislature to vary the amount of salary according to the variations of circumstances; yet under certain restrictions, so as to put it out of the power of that body to change the condition of an acting judge for the worse.* This is wisely contrived in the constitution, which provides that "the judges, both of the supreme and inferior courts shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."t III. As to the partition of the judiciary authority between different courts, it is an established maxim that there must be 419 What other check on the judges is requisite ? 420 Is it of much effect? 421 Why is it important that there should be a fixed support for the judges? 422 What precaution has been taken by some governments? 423 Is that method a wise one? Why? 424 What is the most prudent regulation? 425 How does our constitution treat of it? 426 In constituting several different courts, what is an established maxim? Why is this necessary? * Federalist, No. 79. † Art. iii. sect. 1. some tribunal, than which there can be no higher." This is necessary in order to ensure uniformity in the interpretation and operations of the constitution and laws. Where there are many tribunals, there must be a diversity in the construction of the laws; and if each of them is final, any obligation may be admitted in one section of the country, and denied in another. The existence of a court of the last resort, therefore, by whose final sentence all others are bound and concluded, is indispensable for the purposes of public justice. This last resort may be differently constituted, but there must be some final mode of deciding. Different modes of final jurisdiction have been suggested. By some it is thought that the highest legislative body should be made the final court of error and appeal. But in the first place, this approaches too near to the violation of that rule which requires a separation of the departments of power. "From a body which had had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt to influence their construction. Still less could it be expected, that men who had infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. In the next place, every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body of men chosen for a limited period." There are yet other reasons against it; such as the unavoidable suspension of legislative business; the increased expense of supporting so large a body of men; and the violence and tumult inseparable from large assemblies, which are inconsistent with the patience, method, and attention, requisite in judicial investigation. "These considerations teach us to applaud the wisdom of those states which have committed the judicial power in the last resort, not to a part of the legislature, but to distinct and 427 What body have some supposed should be the final resort? 428 What is the first objection to that? Why? 429 What is the next objection? 430 What other two reasons are against it? 431 What are we taught by such considerations? * Federalist, No. 81. independent bodies of men.”* Such a body in each government is generally styled the Supreme Court. But in order to obviate the necessity of having recourse to the supreme court in every case of legal cognizance, and for the purpose of expediting the decision on the multitude of minor cases which are to be settled by the law; it is expedient that many inferior courts should be constituted, and located in such a manner that each shall embrace but a small extent of territory. Under such an arrangement of the judiciary, the supreme court has original jurisdiction over but a few of the most important causes; and in the rest, it has only appellate jurisdiction, as they must first be tried in an inferior court. CHAP. XIII.-ADMINISTRATION OF JUSTICE. [As it regards the operation of the judiciary, our national courts have cognizance of cases that derive some peculiarity from the federal league of our republic. It does not fall within the scope of this work to specify them. The state courts adjudicate on most of the questions that are decided by municipal law. We will consider briefly what maxims ought to guide their proceedings. It is a principle in the English law, that an act of the legislature, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled in any court of justice. But this principle does not prevail in the United States; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other form of government. But in this, and all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government; an act of the legislature is void if it is not 432 Is one court sufficient for all legal decisions? 433 What then is necessary? 434 What jurisdiction have the different courts? 435 What cases are brought before our national courts? 436 What are brought before our state courts? 437 Of what force are legislative acts in Great Britain? 438 Is this the case in the United States? 439 When is an act of the legislature of no account? Federalist, No. 81. agreeable to the constitution. The law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its particular state; and if it infringes the provisions of either, it is so far void. The judicial department is the proper power in the government to determine whether a statute is or is not constitutional. The interpretation or construction of the constitution, is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. The courts of justice are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.* To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. The proper and peculiar province of the courts is the interpretation of the laws. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the constitution ought to be preferred to the 440 To what must a law conform in order to be of force? 441 How can it be determined whether a statute is or is not constitutional? 442 Ought they always to do it? Why? 443 What would be implied in the denial of this principle? 444 By what other argument can it be shown that judges should have primary regard to the constitution? * Kent's Com. Lect. 20. statutes; the intention of the people, to the intention of their agents. Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.*] But when a statute is not unconstitutional, the court must decide with reference to it. And here the chief inquiry is, how far, and for what reasons, it is expedient to conform to former decisions; or whether it be necessary for judges to attend to any other consideration than the apparent and particular equity of the case before them. Now, although to assert that precedents by one set of judges should be deemed incontrovertible in succeeding cases, would be to attribute to the sentence of those judges all the authority of a solemn act of the legislature; yet general expediency requires that a series of precedents be not overthrown, unless there is a detection of manifest error or dishonesty in the judge or court by whom the question was first decided. For, by this deference to prior decisions, there are two advantages; first, the judge is bound by certain rules; and, second, the subject may know those rules beforehand, and therefore know. how to act and what to expect. Were the judge left free to decide, uninfluenced by precedents, he would be intrusted with a power too dangerous to be given to any man. It would be opening the door to every kind of concealed partialities; which, as they cannot be destroyed, ought to be confined within positive bounds. It is in vain to say that impeachment is always at hand to punish 445 Is then the judiciary superior to the legislature? 448 What is our conclusion relative to precedents? 449 What two advantages are gained by such a procedure? 450 If precedents were of no account, what power would devolve upon the judge? *Federalist, No. 78. |