The national era. [volume] (Washington [D.C.]) 1847-1860, 1859-03-31
For the National Era.
JUDICIAL LEGISLATION.

In the Constitution of the United States there
does not appear to be any expression distinctly
separating the three branches of Government
the legislative, executive, and Judiciary. Yet
the statement of them is in different articles
and in the Federalist, well-known and highly
respected series of articles, written by three
leading patriots of the Revolution, Messrs. JAY
Hamilton, and Madison, in defence of the Con-
stitution, and published at the time of its adop
ton, we find mo. All this strong language
" The accumulation of all powers, legislative
executive, and Judiciary, in the same hands,
whether OF one, a few, or many, and whether
hereditary, selfappointed, or elective, may
justly be pronounced the very definition of tyr
amy" Yet this very article goes on to justify
the many and plain combinations of such pow
ers in the Constitution, by the example of other
nations and States, tending to show that the
separation referred to was never understood in
strict sense; and that the violation of the
rule is the result of necessity By this neces-
sity it is of course justified but it cannot be
justified in cases where there is no such neces-
slty and especially where it leads TO injustice
or oppression.
Had all the political operations by which the
people are controlled or regulated been found!
ed on the Constitution, or Legislative acts in
conformity to it, the few and unavoidable COM
mixtures in that instrument of the distinct
branches referred to- in the same bodies. would
have produced no practical evil; and the secu-
rites provided against any tendency in them
to tyranny are amply sufficient; but, unhap-
PLY, much of the real government of the com
munlty is established on multitude of max
inns, derived from antiquity or former decisions,
enormously called common law" which is no
law at all, nor derived from any constituted
authority; but are only customs or rules of
courts, difficult to apply to the infinite variety
OF cases ever occurring sometimes Overruling
or perverting statute laws and yet vigorously
enforced by the courts and law officers. In
the administration of this alleged law, consid-
cred as binding on the people, the judiciary as
Sumes legislative and executive power. And
thus, to the extent ofthis kind ofjudgment, which
IS to the majority of cases, it imposes what Mr..
Madison, in the article referred TO, pronounces
the very definition Of tyranny" Against this
tyranny the people derive no security from a
republican form of government for it does not
proceed from enactments Of representatives
chosen by themselves.
But it will be said, there must be a iudici-
airy, TO decide contested rights between individ-
uals, to protect them against force and fraud, |
and to discover and punish crime and it will !
be asked, how can these be done in cases for |
which no provision is made by legislation, I'M
less by the common law" which stands as a
substitute? We answer, by common sense (; !
by the instructive judgment Of truth, which ex-
lists in the mind of every impartial man, when |
the circumstances of case are fully known to
him. Frequent are the cases where such judg- !
ment is clear and uniform in the minds of !
jury; when it is overruled by the precedents
cited by the judge, or the objection of some
rule OF court, which has not been complied
with. 1t Is not reason nor the statute books, !
but the reports of law books, which govern the |
people.
All this notification Of our boosted freedom
and enjoyment of equal rights proceeds from
maxim almost universally prevalent in this !
country, held by all parties, and even tacitly !
conceded by those who most oppose its opera
ton, and is yet most clearly and demonstrably
untrue this is, that a decision of a court in |
any case, not affected by legislation, or in in
depreciation of any law or constitutional pro- |
vision, forms a rule, which is thenceforward to |
be regarded as the law of the land, and legally |
obligatory in the determination of every similar |
case In the future. 1t is even thought by some
that such decision is a restraint upon iegisla-
ton itself; thus plainly making the Judge not
only legislator, but even giving him para
mount legislation, although without any au-
thorlty by election from the people. There is
nothing IN the Constitution or in common
reason, which sanctions this maxim; the true
dietary is, that courts are to decide each case
which comes before them, in conformity to enact
ed law, or, in defect of that, on existing custom
IN the community, or rational view Of JUS
tlce; and that such decision is TO be strictly
executed IN regard to that case only, and to have
no influence on any other or future case how
ever similar. Whenever it has any such obi.
gatory influence, it goes beyond simple adiudi-
cation, and becomes legislation. Judges should
be independent of each other, as well as of the
Government or the people; and are in honor and .
honesty bound to judge, each according to his
own view of the merits of a case without regard
to the opinion OF another or former Judge. Uni
just or oppressive judgments would then only :
affect single case, and the perpetuation Of
them through course of legal practice, now
so obvious, would be avoided. /
As respects the freedom of the citizen. this
view has especial application to constitutional
queshons-that 49, to questions respecting the
constitutionality of law. As the formers Of
our Governments, as well as the people gener-
ally, were well aware of the propensity of men
invested with power to usurp further power
Constitutions were made, not only to authorize
and direct, but also to limit and restrain, egis-
lation and it is to their Constitutions that the
people chiefly look for a safeguard against the
encroachments of Legislative power of course,
when any law is passed which infringes the
rights of any portion of the people, and which
is not authorized by the Constitution, its con-
stitutionality is called in question, in any trial
under that law; of this the Judge is to decide
If there is the slightest reason for the validity
of the law, and the Judge should be, as they
most generally are, more anxious for the in
volatility of law and the stability of Govern
ments, than for the liberty or rights of the citi
zen, he will be likely to affirm the constitution
ality of the law, however oppressive it NAV be
and il, in subsequent trials of this question
judges do not think for themselves, but con-
slider themselves bound by this decision, the
legal encroachment on the rights of the people
will pass down from generation to generation,
carrying all its evils in its train. This is not
mere hypothetical Imagination the fugitive
slave law is an instance in point, the clause in
the United States Constitution which enloins
the delivery of fugitives from service, does not
authorize Congress to provide for this delivery
and, as the tenth amendment forbids the as
sumption by that body of any power not ex-
pressly granted, they had no authority to pass
that law, and it is of course unconstitutional
but, by a sophistical reasoning, judicial sane
ton having been given to former fugitive
slave law, judges in later trials have success
sively seized upon that precedent, to confirm
the present law, with all its unjust, tyrannical,
and cruel provisions. On examination of the
judicial charges favoring this law, it will be
seen that none of them produces an authority
from the Constitution ITSELF but all rest their
judgments on the decisions of former Judges.
still stronger exemplifcation of the ruin
Gus effect on the rights and liberties of citizens
of the maxim now considered, is the late opin-
ion of the Supreme Court, in what is called
IL NANk Il