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be firmness in courts, in the hour of trial, to resist the fashionable opinions of the day. The judiciary in itself, has little power, except that of protection for others. It operates mainly by an appeal to the understandings of the wise and the good ; and its chief support, is the integrity and independence of an enlightened bar.

While our judges remain fearless and firm in the discharge of their functions, corrupt and popular leaders at the bar cannot possess a wide range of oppression, but must stand rebuked in their career for power. But it requires no uncommon spirit of prophecy to foresee, that whenever the liberties of this country are to be destroyed, it will be when public opinion shall be lost in the integrity of the judiciary; when the conspiracy shall be bold enough to corrupt, and judges be found so wanting in character as to consent to be corrupted; then shall we see the courts of justice brought into public odium; and thus shall be seen removed, the last barriers between the people and despotism.

Thus it appears, that these objects, rendered necessary by a change of circumstances, have been effected by equitablé interference,-that is, in truth, by judicial refinement, and not by the seasonable enactment of salutary laws. Instead of the encroachment upon the common law, of which Bacon was apprehensive, it seems that the Prætorian courts overflowed their banks in an opposite direction, and, while sparing of injunctions, openly invaded the province of the Legislature. Upon a careful investigation of the course actually pursued, it will be found that, in general, inconvenient laws were set aside, and required changes were effected, by the use of technical fictions, and contrivances to evade inconsistent rules; and if there have been a lamentable want of politic institution, there has been thought to have been also, at times, some defect of judicial principle. Mr. Butler is decidedly of opinion, as regards the ascertaining and obtaining the proper boundary of interpretation and legislation, that the French courts of justice have shown greater moderation than our own, in the exercise of this important branch of judicature. a It certainly is a remarkable fact, that the jurisdiction or methods of proceeding in all our superior courts, will be discovered, on inquiry, to be founded in usurpation, and sustained by fiction.

*

a Reminis. vol. 1.

• "Maximo omnium interest certitudinis legum, ne curiæ prætoriæ intumescant ot exundent in tantum, ut prætextu rigoris legum mitigandi, etiam rober et nervos iis incidant aut laxent, omnia trahendo ad arbitrium."-- Aphorism, 43.

The jurisdiction of the court of King's Bench in civil actions, was notoriously acquired by contrivance, the court of common pleas having had, in former times, the exclusive cognizance of all suits merely civil, that is to say, which had nothing in the proceedings of a criminal nature, inasmuch as neither trespass nor violence were imputed to the defendant. But by a fiction of law, all persons alleged to be prisoners, in the custody of the Marshal of the Marshalsea, though not actually being so, were held, as Buch, liable to be sued in any personal action, by bill filed in the court of king's bench.

The court of common pleas always had a direct jurisdiction in civil suits; but “regularly,” says Lord Coke, “the court cannot hold any common pleas in any action, real, personal, or mixed, but by writ out of the chancery, and returnable in this court, a (except by the privilege of its officers.)" Yet without setting out any original wrít, the common capias proceeded upon the foundation of such supposed previous proceeding.

The peculiar jurisdiction of the court of exchequer at common law, related to matter concerning the king's revenue; "the effectual description of the jurisdiction of the court being," says Lord

" Coke, 6 " that it is for the profit of the king." Hence, it was early established, that any person being a debtor or accountant of the crown, might sue in the exchequer either at equity or at law, to obtain a right, the withholding of which rendered him less able to satisfy his debt to the crown.

It has been already seen, of what handles the court of chancery availed itself, and by what means it was enabled to assume a jurisdiction over real property, greatly more extensive than was ever possessed by the common law courts.

Upon the subject of legal fictions, (the instrument by which all these usurpations were affected,) the following judicious remarks were made by the intelligent persons appointed to inquire into the practice and proceedings of the superior courts of common law. The observations of the learned commissioners are so well founded, acute, and sensible, and so apt to the present purpose of this work, that no hesitation can be felt in citing and

adopting them verbatim, as they occur in their first report.c “Our ancient institutions having been adapted to a rude and simple state of society, the courts, in later times, gradually became sensible of defects of jurisdiction and other inconveniences, to which the altered circumstances of the nation had naturally given rise. In some cases the remedy was supplied by legislative regulations; but where this was wanting, the judges were apt to resort to fiction, as an expedient for effecting indirectly, that which they had no authority to establish by law. But to whatever causes the invention or ena 4 Inst. 99.

c First Common Law Report, p. 82 64 Last. 112.

a

couragement of legal fictions may be assignable, we have no doubt that they have an injurious effect in the administration of justice, because they tend to bring the law itself into suspicion with the public, as an unsound and delusive system; while an impression of the ridiculous is also occasionally excited by them, of which the natural effect must be to degrade the science in some measure, in popular estimation.”

The same observations apply to other cases :—to what has been termed the “clumsy" fiction of a lost grant in the case of an easement;—to judges presuming an act of parliament;-to directions to juries to presume the surrender of a term or something else absolutely contrary to the fact, in lieu of altering an inconvenient law by direct legislative enactment;a in short to all instances of ingenuity employed in contrivances to evade a law that requires to be altered.

It only remains to be stated, that there has not been any marked reciprocity of usurpation. The case of bills and attainder and bills of pains and penalties is the only familiar instance of the legislature quitting its proper province, and superseding the judicial functions.

a First Report of Real Property Commissioner

CHAPTER X.

OF AMERICAN CONSTITUTIONAL POWER. ITS LIMITATIONS; ITS DIS

TRIBUTION OF THE SOVEREIGN POWER TO THREE DEPARTMENTS; THE INDEPENDENCE OF EACH DEPARTMENT OF THE OTHER. THE FUNCTIONS OF EACH DEPARTMENT IN THE ADMINISTRATION OF THE LAW.

In the preceding chapter, was considered, the nature and extent of legislative power independent of any restriction, contained in the written constitutions of the nation or state. In this, we propose to show some of the limitations of legislative power; and this seems to demand, that we show what constitutes the lawmaking power in a free, republican form of government; and how this power is organized under our system of written constitutions, with its limitations and restrictions, into several departments; and the separate powers and duties of each department.

This law making power, as our author has remarked, in all civilized governments, is usually, vested in the sovereign power of the state. By sovereign power, is usually meant, unlimited and uncontrolled power. This, seems to have been the opinion of almost all the ancient writers, that in whatever department of the government this power was lodged, it was regarded as absolute, and beyond control; that it must, absolutely, be possessed by some one department of government; and that the person or power in whom this sovereignty resides, is the supreme power in the making and promulgation of laws; and this, is usually called the legislative power. a

These opinions, however, are chiefly confined to, and are the reasonings of the ethical and juridicial writers of Europe, among whom no uniformity of opinion really exists. Burlimaqui says " that this sovereign power is supreme and independent, and when once established, it acknowledges no other upon earth superior or equal to it.” b "That among the essential parts of sovereignty, the first rank is given to the legislative power.”a He however admits that God alone, by reason of His nature and perfections, has a natural, essential, and inherent right of giving laws to mankind, and of exercising an absolute sovereignity over them. b That human sovereigns are God's vicegerents on earth, which means, that, by the power lodged in their hands, and with which the people have invested them, they maintain, agreeably to the views of the Deity, both order and peace, and thus procure the felicity of mankind; and he quotes a passage from Cicero, to this purpose, viz: “Nothing is more agreeable to the Supreme Deity, that governs this universe, than civil societies lawfully established.”

a Paley's Mor. Philos, 2 part 185. 6 Prin. of Pol. Law, Pt. 1, Ch. 6

We do not propose in this work to fully discuss the diversities of theory upon the question of sovereignty, except in American governments; to show where this power resides; to trace it to its origin ; to exhibit its power in the European governments as it is claimed by the various writers on this subject; or to compare their various theories for the purpose of drawing any conclusion therefrom. As it is understood to the ordinary mind, sovereignty is that public authority, which has no superior; it is the power to do any thing and every thing in a State, without being accountable to any one; to make laws and to execute them; it is that power which commands in organized civil society, and which orders and directs what each must do, to acquire its ends. With us, it is a union of all the powers of the state. Abstractedly considered, it belongs to the people, and resides, essentially in the body of the nation, but with us, the nation, by the people, now exercise this power by delegation. To the curious who may desire to investigate; to the student of history who may desire to make research ; to the politician who may desire to learn and to compare the powers of different governments, and to the philosopher who seeks the profoundest sources of knowledge upon the science of governments, with all its incidents, we commend the theories of such juridicial writers as Grotius, Puffendorf, Burlimaqui, Coke, Blackstone, Domat, Locke, Burke, Christian, Wooddeson, and others of greater or less note.

It will be our object, to present in this treatise, the American idea of the powers of legislation; and to show how far the exercise

a Id. Pt 3, Ch. 1.

b Id.

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