Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1864-02-22

Conspicuous among the mischievous political
errors inaugurated by the Administration party
are their doctrines and efforts to disfranchise
the Judiciary department offs proper functions.
and to deprive il of its appropriate influence and
authority. In all wisely ordered governments
the principle of the separation OF the several de-
Partments has been recognized as essential, but
as more especially necessary IN those govern
ments designated free. Mr.. MADISON says:
''The accumulation of all powers, legislative ,ex-
ecutive and judiciary. in the same hands. whether
self appointed. or elective, may justly be pro-
nounced the very definition of tyranny"
The idea of judiciary comes down to us from
the most remote antiquity, and has been devel-
oped aud matured, as men have advanced in the
knowledge of government. The Egyptians, we
are told. required the judges to take an oath to
declare the law and to do justice, even if the
King commanded to the contrary. And this is
the solemn duty and Office Of judges to-day. They
are the umpires to whom are referred all disputed
questions of law, authority under the law. In
a limited government the sovereign authority
executing the powers entrusted to it is necessarily
restrained and guided by fundamental law. To
the judiciary is assigned the exposition of the
fundamental law as well as Of other laws. The
fundamental law defines the powers, duties,
rights, obligations and relations of the govern
ment and citizens. If the legislature should
transcend its authority and pass alaw contrary to
the Constitution, it would seem to be pretty clear
that it ought not be the judge in a case of its
own wrong.
ALExArDEn HAMIITos, VIM, OF all the fra
mers of our Constitution, was supposed to be the
most strenuous advocate of what is called strong
government; yet he very earnestly argues the
necessity of IN independent judiciary, as essen
tia to guard the rights of the citizen and to de-
fend and maintain the limitations of power de-
clared by the fundamental law. He says FED
eralst Paper, LXXVIID: 1.-The complete indie
pendence of the courts of justice is peculiarly
essential in a limited constitution. By limited
constitution / understand one which contains
certain specified exceptions to the legislative au.
thority; such for inst-nce that il shall pass no
bills of attainder no erpost factO law, and the
] like Limitations of this kind can be preserved in
practice in no other way than through the medium
declare all laws contrary to the manifest tenor oil
the Constitution void. Without this all the re-
servations of particular rights or privileges would
amount to nothing.
"Some perplexity respecting the rights of
courts to pronounce legislative acts void be
/ tla
from an imagination that the doctrine would i'm
ply superiority OF the judiciary to the legis-
latiye power 1t is urged that the authority
which can declare the acts of another void must
necessarily be superior to the one whose acts may
be declared void. As this doctrine is of great
brief discussion of the grounds on which it rests
cannot be unacceptable.
i There is no position which depends on clearer
principles than that every act of delegated au-
thority contrary to the tenor of the commission
under which it is exercised, is void No legisla-
tive act. therefore, contrary to the Constitution.
can be valid. To deny this would be to affirm
that the deputy is greater than his princpal that
the servant is above his master; that the repre-
sentatives of the people are superior to the peo-
pie themselves; that men acting by virtue Of
powers may do not only what the powers do not
that the legislative body are themselves the Con.
stitutional judges of their own powers. and the
construction they put on them is conclusive upon
other departments, il may be answered that this
cannot be the natural presumption, where it is to
be collected from any particular provisions of the
Constitution 1t is not otherwise to be supposed
that the Constitution could intend to enable the
representatives of the people to substitute their
,oiiL to that of their constituents IL is far more
rational to suppose that the courts were designed
to be an intermediate body between the people
and the legislature. in order, among other things.
to keep the latter within the limits assigned to
their authority. The Interpretation of the law is
the proper aud peculiar province of the courts.
A constitution is, in fact, and must be received
by the judges. IS a fundamental law. Ii must
therefore belong to them to ascertain its mean
ing, as well as the meaning of any particular
act proceeding from the legislative body II
there should happen 10 be an irreconcilable va
rance between the two. that which has the supe-
r;or obligation and validity ought. of course, to
be preferred; IN other words the Constitution
ought to be preferred to the statute; the inten-
ton of the people to the intention of their agents.
Nor does the conclusion by any means suppose q
superiority of the judicial TO the Legislative
power. IL 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 10 opposition to that of the people de-
clared In the Constitution. the judges ought to
b, governed by the latter rather than by the for.
mer. They ought TO regulate their decisions by
the fundamental laws. rather than by those which
are not fundamental. II can be of no weight to
say that the Courts.on pretence OF a repugnan.
nancy, may substitute their own pleasure to the
constitutional intentions Of the legislature.
This might as well happen In the of two
contradictory statutes; or. II might as we'll hap.
pen In every adjudication upon any single stat
ute.
THE independence of the judges IL equally
requisite 10 guard the Constitution and the rghto
OF individuals from Tho effects OF those III humors
which the acts OF designing men or the 10 auence
OF particular conjunctures sometimes disseminate
among the people themselves, and which. though
they speedily give place TO better information
aud moro deliberate reflection. have n tendency,
In the meantime, TO occasion dangerous nnoya
tons In the government. and serious expressions
OF the minor party IN tho community Though