different institution from that which we have since learned to regard it. Now with the magistracy, we inseparably connect the ideas of integrity, learning, and philosophy. The great names of Eldon, Mansfield, Marshall, Kent, and Story, arise at once before us when we speak of tribunals of justice. But far different was it at the era of the English Revolution. In the minds of the thinking men of that period, the judges were the arbitrary and servile tools of the crown. With them the judi ciary was represented by the corruption of Bacon, the servility of Herbert, and the cruelty of Jeffries; the atrocities of the bloody assizes, the lawless despotism of the ship-money judg ment, and the scandalous illegality of the dispensing power. It is not to be wondered at that the judicial doctrine of construction was distrusted by the opponents of the abuses of monarchical authority.* Clarendon, no lukewarm friend of the crown says, speaking of the ship-money case, "And here the damage and mischief cannot be expressed that the crown and State sustained by the deserved reproach and infamy that attended the judges by being made use of in this and like acts of power; there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves but by the integrity and innocency of the judges;" and he proceeds to charge the violence of the ensuing Parliament "to the irreverence and scorn the judges were justly in."Hist. of Rebellion, Oxford ed. 1704, vol. i, p. 55. Away, then," says a staunch whig writer, about the year 1700,"with that apparently sophistical argument which in late times made so great a noise and bustle in the world, namely, that the King, the Lords' House, and the Commons' House concurring, had not an unlimited power to make laws, it being in the breast of the judges of the realm to determine which acts of Parliament were binding and which void, and to expound the meaning of every act of Parliament. And that, by referring this unto the judges of the realm, the people were better secured from an arbitrary power than by attributing it to the Parliament. A notion which hath been artifically spread abroad, and industriously improved; a notion which is equally pernicious and injurious to all kings and parliaments, whose inherent right it ever was, by joint consent to alter, amend, explain, and interpret their own statutes as they saw cause, and according to public convenience. But how could any thing of all that be done, if the judges had ever been invested with such a power inseparably united and annexed to their persons, quatenus The heading judges, to invalidate, disannul, and declare The subject of Non Obstantes, as they were at the time of the English Revolution So far as the character of the judiciary was concerned, the evils attributed to the doctrine of judicial constructions were familiarly called, or that of the right then claimed for the king, by virtue of his royal prerogative, to dispense with the provisions of a statute in favor of some particular person, is so interesting that I compress into this note a brief abstract of the case of Godden v. Hales, from Howell's State Trials, ed. of 1811, vol. xi, p. 1165. The stat. 25 Charles II, "for preventing dangers which may happen from Popish Recusants, and quieting the minds of his Majesty's good subjects," passed during the religious excitement which prevailed in that monarch's reign, declared that every person appointed to office, civil or military, under the king, should within three months after acceptance, receive the sacrament according to the usages of the Church of England, and publicly take the oaths of supremacy and allegiance, under a penalty of £500, for executing the duties of the office after the three months expired without the oaths and sacrament being taken. In the year 1686 (2d Jas. II), Godden, or Godwin, an informer, sued Sir Edward Hales in the King's Bench, in an action of debt of £500, alleging that the defendant, in 1673, was admitted to the office of colonel of a foot regiment, and held it for three months without taking the sacrament or oaths in question, and that he had been indicted for and convicted of the offence. The defendant pleaded that within the three months in the declaration mentioned, the king, by letters patent, did dispense with, pardon, remit, and discharge the defendant from taking the said oaths, &c., and from all crimes, &c., any clause in the said act, or in any other act notwithstanding, and non obstante that the defendant was or should be a recusant convict; demurrer and joinder. On this case the twelve judges were consulted: eleven declared in favor of the demurrer; and judgment was given, quod querens, nil capiat per billam. The eleven judges have been ever since severely condemned, and the twelfth has not fared much better (see Macaulay's Hist. of England, vol. ii, chap. vi). The dispensing power has been a sort of standing symbol or equivalent for every thing arbitrary and tyrannical; and by the Bill of Rights, 1 W. & M. ses. ii, c. ii, 12, it was declared that from the then session of Parliament, no dispensation with any statute should be valid, unless such statute declared it, &c., and except in such cases as should be specially provided for. But, perhaps an accurate examination of the subject will lead to a somewhat more charitable judgment, as far at least as the judges are concerned. Mr. Macaulay's account is not very full. As reported in the State Trials, the arguments of the case by the counsel, and the judgment of the court, are feeble enough; but the treatises published on both sides of the question at the time, by Sir Robert Atkins, and the Chief Justice, Sir Edward Herbert, enable us to form a pretty accurate opinion of the subject. These pamphlets are republished in Howell's State Trials, at the end of the case. That the king had a certain dispensing power in regard to the penal legislation of Parliament, was generally admitted. This prerogative is defined and defended by Coke, in the case of the Monopolies: Dispensatio mali prohibiti est de jure Domino Regi commissa, propter impossibilitatem providendi de omnibus particularibus, et dispensatio est mali prohibiti provida relaxatio, utilitate seu necessitate. It was considered as a sort of anticipatory and more extensive pardoning power. Hobart, Plowden, Vaughan, had all treated the existence of the prerogative to some extent as unquestionable, and it had been repeatedly recognized by the courts. On the other side, the right of dispensation in general was, it is true, denied; but the main question raised in the reign of James II, was, admitting its existence, whether the right covered the particular case. It was agreed by the crown lawyers that the dispensation must be confined to the case of an individual, and could not be general; but that presented no difficulty in this instance, the patent being to Hales alone. It was admitted also, that the dispensation could only be of mala prohibita, and not of mala per se; and it was strenuously discussed whether the prohibited act in this case belonged to the one or the other class. It was admitted that the dispensing power could not apply to those laws which concern property, but it was insisted that it did cover those relating to the policy of government. It is curious to observe, that so far as the act of 25 Charles II imposed a religious test, it would now be almost universally regarded, even in England, as unwise and unjust; and that thus a great principle of liberty was es tablished by maintaining and defending, in its full violence, a fanatical and arbitrary statute. But the law was the will of the nation, the non obstante patent was the act of the king. And there is the true interest and the real merit of the question. A century before, no lawyer would proba bly have disputed the dispensing power in its fullest extent. The Parliament that passed the act of 31 Henry VIII, giving the king power to make laws by mere proclamation, would have hardly ventured to quarrel with a non obstante; but, in the next century the power of the sovereign had dwindled, the diimensions of the nation had expanded, and corrected by the act which made the tenure of their office dependent on their good conduct alone, and emancipated them from all subordination to the crown. The influence of this alteration was almost immediately perceptible; the same magistrates who, holding their offices de bene placito would have been sycophants and time servers, became so soon as they occupied their seats quamdiu se bene gesserint, bold and honest public servants.* that flexible thing called the English Constitution adapted itself to the new state of things. Looking at the question, however, as it presented itself in the reign of James II, either to the strict technical lawyer of that age, or to men with any tendency to the principle of toleration, the judgment affirming the prerogative does not seem so great an enormity as it is now generally regarded. By the 12 and 13 William III (1700), c. 3, §3, it was provided that after the said limitation (i. e., of the crown to the House of Hanover) "shall take effect as aforesaid, judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established, but upon the address of both Houses of Parliament it may be lawful to remove them." And by Geo. III, c. 23, the judges were continued in office during good behavior, notwithstanding the demise of the crown. Still, the traces of the old distrust of the judiciary are apparent in England, down to a very recent period. Notwithstanding the alteration of their tenure, the judges were still the organs of a system of vicious privilege and of a sanguinary penal code; and it is little more than half a century since Parr called them "the furred homicides" of Westminster Hall. It is not, I think, much more than a generation since this hostility has entirely disappeared, and since the reputation of the English judiciary for moderation and humanity has been as generally admitted as it has always been for learning and ability. It is curious to observe that the same abuse of judicial authority took place in France also; and there the judges carried their power of construction to such lengths that it became necessary to arrest it by positive law. The power of the judiciary to construe the statute law, and the authority of judicial dedecisions or acts generally, has been the subject of great controversy in France; Dupin says, no point more so. Jurisprudence des Arréts, p. 19. Under the old monarchy, the judges united certain legislative with their judicial functions; they pronounced their decisions in litigated cases, or Arrêts, as they were called, because they arrested (arrétaient) all further controversies, and terminated the cause. Dupin's Jur. des Arréts, p. 1. And they also made arrêts d'enregistrement, and arrêts de reglement. The former applied to royal edicts, declarations, letters patent, &c., and furnished a practical check on the despotic power of the sovereign, more or less efficacious, as the case might be. Tel édit enregistré à Paris ne l'aura point été ou à. Toulouse ou à Rouen, et n'y fera point loi par consequent; ou bien il n'aura été enregistré qu'avec des modifications qui restreignent ses dispositions.-Camus, Etudes d'un Avocat 4me Lettre, p. 82. The latter, arrêts de reglement, decided questions of customary law (droit coutumier), police, professional discipline, practice; and had the force of law until the sovereign interfered by an edict or royal ordinance. Dupin's Jur. des Arrêts, p. 48. In regard to the arrêts or decisions in litigated cases, the judges gradually fell into the mischievous practice of giving their judg ments without stating any reasons whatever. Ju. des Arrêts, p. 62. This, of itself, would naturally tend greatly to diminish, if not entirely destroy, the weight and value of their decisions, and it finally came to be insisted by jurists of high authority, that they should not be cited at all. Camus goes so far as to say, "On ne devrait jamais citer que des arrêts de reglement; en alleguer d'autres simplement comme des exemples et des prejugés, c'est un abus que les gens sensés devraient bannir, parcequ'un exemple ne saurait être concluant qu'autant que les circonstances sont entirement semblables; ou, en supposant la possibilite de cette similitude parfaite, il reste à l'établir, ce qui est ordinairement une chose impossible. Mais ce mauvais usage d'invoquer les arrêts subsistera long temps."-Camus' Etudes d'un Avocat, p. 101. The disfavor with which the proceedings of the judges were regarded, was greatly increased by their abuse of the power of mak ing arrêts de reglement. Exercising what was truly a legislative function, when a law of the kind we have above enumerated came before them, and they found either a doubt, or a casus omissus, or what they considered an error in the law, they removed the difficulty or supplied the omission by an arrêt de reglement, which applied to all future cases, and operated like a statutory enactment. This practice, as can easily be imagined, led to great abuses; and an attempt was made to check it by declaring that the business of the judges was simply to obey the law, and a general prohibition was made of judicial interpretation. This prohibition, made origin The character of the bench being changed, the mischievous abuses of the judicial power gradually tended to correct themselves. As the statutes became more plain and explicit, as the Legislature ceased to be the mere arena of political controversy, and devoted itself to framing general rules for the conduct of affairs, the judges themselves set limits to the powers they had arrogated; and abandoning all pretensions of a right to exercise any control over legislation, to correct its errors or supply its deficiencies, they confined their power of construction to admitted cases of doubt. Such is now the settled doctrine both in England and in this country. "The language of the statute is plain and unambiguous, and when such is the case, the will of the Legislature must be obeyed." "It is the office of the courts to administer the law as the Legislature has declared it, not to alter the law by means of construction in order to remedy an evil or inconveniences resulting from a fair interpretation of the law." "It is scarcely necessary, we trust," ally so far back as 1667, was renewed by the Constituent Assembly in 1790. Portalis' Discours Preliminaire, Code Civil, Art. 4. The judges, to take their revenge for this interference, adopted a new line of practice; and whenever the law appeared doubtful or obscure, they refused to decide the cause, and referred the whole matter to the Legislature. Ib. This, however, was speedily condemned as an abuse, by the Court of Cassation; and the Code Civil contains a provision which at first sight looks very odd to the English jurist, declaring that the judge cannot, without rendering himself liable as guilty de deni de justice, refuse to decide the cause, on the ground of the silence, the obscurity, or the defectiveness of the law; while at the same time it is declared that the judge may construe the statute in the particular case, but cannot make any general regulations. The provisions are very curious. Le juge qui refusera de juger sous pretexte du silence, de l'obscurité, ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de deni de justice. § 4. Il est defendu aux juges de prononcer par voie de disposition generale et reglementaire sur les causes qui leur sont soumises. § 5. The abuse first above referred to was corrected by a law passed by the Constitutional Assembly in 1790, requiring the judges in deciding causes, in all cases to state the questions of fact and law involved, and the reasons of the judgment they pronounced. Jur. des Arrêts, p. 68. Since this period, the value of the French decisions has generally increased; but the whole subject of the judi cial power in France is, or has been till a comparatively recent period, in great uncertainty. Portalis, in his admirable Discours Preliminaire to the Code Napoleon (1802) devotes several pages to prove the propriety of judicial construction of legislative acts as opposed to a reference of each litigated case turning on a doubtful point of statute law to the Legislature; and in 1822, M. Dupin published his Jurisprudence des Arrêts, for the purpose of defining the precise amount of authority rightfully due to judicial decisions. In the course of it, the learned author repeats the arguments of Portalis as to the propriety and necessity of judicial construction (Jur. des Arrêts, pp. 10 and 12), and gives minute and copious rules for the choice and mode of citing the arrêts of the French courts. It is curious and interesting, but to the English or American jurist appears a very rudimentary treatise. The eleventh chapter of the treatise of Mr. Dwarris is devoted to the subject of the boundaries of legislation and of judicial interpretation; in it he makes copious extracts from the Discours Preliminaire of Portalis, and among other things, remarks, "that even among our enlightened neighbors, and at a very recent period, the boundaries of legislation and of judicial interpretation were so vaguely defined and so imperfectly understood, that the judges were constantly either mistaking the principles or erring in their application of them.-Dwarris, pp. 697, 783. *Ellis v. Paige et al., 1 Pick. 43. Per Paige, J., in the Court of Appeals James v. Patten, 2 Selden, p. 9. says Mr. Chief Justice Redfield, in the Supreme Court of Vermont, "at this late day, to say, that the judicial tribunals of the State have no concern with the policy of legislation. That is a matter resting altogether within the discretion of another co-ordinate branch of the Government. The judicial power cannot legitimately question the policy, or refuse to sanction the provisions, of any law not inconsistent with the fundamental law of the State. And they would never attempt to do this even, except upon obvious or satisfactory grounds."* Thus have the lines of demarkation, as they now exist, been established between these two great branches of Government. The Legislature gradually ceases to interfere with private rights, and tends more to confine itself to the establishment of uniform, general and prospective rules. The judges resign and disclaim the power of correcting the errors or supplying the deficiencies of the Legislature, and confine themselves strictly to the duty of construction and interpretation in doubtful cases. This power is now fully conceded to them both here and in England. The rules controlling the exercise of this power, we shall shortly examine; but before doing so, we have to consider our second head, i. e., the limits of the judicial power as used to apply and enforce constitutional pro visions. tion. This branch of judicial authority deserves particular attenIt is entirely the growth of American jurisprudence; it confers vast powers on the judicial body; and it is one of the surest preservatives of our liberties. In England there exist certain principles of what is there termed constitutional gov ernment, to be found in, or deduced from Magna Carta of King John, the statute called Confirmatio Chartarum, and various other corroborating statutes passed between the reign of Edward I and Henry IV; the petition of right in the time *In re Powers, 25 Vermont, p. 265. "If the provision that the legislative and judicial powers shall be preserved separate and distinct, be not found in our own Coustitution in terms, it exists there in substance, in the organization and distribution of the powers of the departments, and in the declaration that the " supreme legislative power" shall be vested in the Senate and Assembly. No maxim has been more universally received and cherished as a vital principle of freedom. And without having recourse to the authority of elementary writers, or to the popular conventions of Europe, we have a most commanding authority in the sense of the American people, that the right to interpret law does, and ought to belong exclusively to the courts of justice." Dash v. Van Kleeck, per Kent, J., 7 J. R. pp.477, 508-9. |