The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1921-04-15

Address Delivered by Eugene B. Gary, LID, Before the School Of
University of South Carolina March lt 1921

diversity of South Carolina March lst !
cial power, on the principle adopted by the Americans. The
judicial organization Of the United States is the institution
which the stranger has the greatest difficulty in understanding. he
hears the authority Of q judge invoked in the political occurrences
Of every day, and he naturally concludes that in the United
States the judges are important political functionsriea.
The first characteristic Of judicial power in all nations is
the duty Of arbitration.
The second characteristic of judicial power is, that it pro-
nounees on special cases and not upon general principles.
The third Characteristic Of the judicial power, is, it's inability
to act unless IT is appealed to, or until it has taken cognzsnee Of
an affair.
The Americans have retained those three distinguishing
characteristics Of the judicial power; an American judge can only
pronounce = decision when litigation has arisen and he can not
act until the cause has been brought before the court. His posi-
ton Is, therefore, perfectly similar to that Of the magistrate Of
ether nations; and he is nevertheless, invested with immense po-
IHcal power. If the sphere Of his authority and his means Of
action are the same as those Of other judges, it may be asked
whence he derives a power which they do not possess. The cause
of this difference lies in the simple fact that the Americans have
acknowledged the right Of the judges to found their decisions on
the Constitution rather than on the laws. In other words they
have left them at liberty, not to apply such laws as may appear
to them to be unconstitutional. .
In England the Parliament has an acknowledged right to
modify the Constitution, as therefore, the Constitution may un-
dergo perpetual changes it does not in reality exist; the Parla-
ment is at once . legislative and a constituent assembly.
Whenever a law which the judge holds to be unconsituton-
al is argued in a tribunal Of the United States he may refuse to
admit it as q rule; this power is the only one which is peculiar to
the American magistrate, but it gives rise to immense political
influence. Few laws can escape the searching analysis, for there
are few which are NOT prejudicial to some private interest or
other, and none which may not be brought before a court of JUS
tie by the choice of parties, or by the necessity Of the case. But
from the time a judge has refused to apply any given law in
a case, that law loses a portion Of its moral sanction. The per-
sons to whose interest it is ~prejudical learn that means exist for
evading its authority; and similar suits are multiplied until it be-
comes powerless. One of two alternatives must be resorted to;
the people must alter the constitution, or the legislature must
repeal the law.
The political power which the Americans have entrusted to
their courts is, therefore, immense.
But the American Judge is brought into the political arena,
independently Of his own viii He only judges the law because
he is obliged to judge a case. The political question which he is
called upon to resolve is connected with the interest of the parties
and he can not refuse to decide it without abdicating the duties
Of his post. He performs his functions as a citizen in fulfilling,
the strict duties which belong to his Office as a magistrate. With
in these limits, the power vested in the American courts of JUS
tMe of pronouncng a statute to be unconstitutional, forms one
of he most powerful barriers which has ever been devised against
the tyranny of political assemblies"
Again he says: "The courts Of justice are the most visible
organs by which the legal profession is enabled to control the
democracy. The judge is a lawyer who, independently of the
taste for regularity and order which he has contracted in the
study Of legislation derives an additional love of stability from
his own inalienable functions. His legal atainments have already
raised him to a distinguished rank amongst his fellowctizens;
his public power completes the distinction Of his station, and
gives him the inclination natural to privileged classes"
After the adjournment of the convention of 1887, Governor
Norris, a delegate from Pennsylvania, wrote to a friend stating
that he had been instrumental in planting in the constitution,
germs lila Woulu ILuaCS In ILLS III mPtlIa eInu
The address Of Luther Martin, a delegate from Maryland in
the convention delivered to the legislature of that State, shows
that there were others in the convention who wished to make our
government a monarchy. He said: ut may be proper to inform
you that on our meeting in convention it was soon found there
were among US, three parties, Of very different sentiments and
views; one party whose object and wish it was to abolish and
annihilate all State governments, and to bring forward one gen.
eral government over this extensive continent Of a monarchial
nature, under certain restrictions and limitations. Those who
openly avowed this sentiment were, it Is true, but few; yet It is
equally true, sir, that there was q considerable number, who did
not openly avow it, who were by myself and many others Of the
convention, considered as being in reality, favorers. of that senti-
ment; and, acting upon those principles covertly endeavoring to
carry into effect what they well knew openly and avowedly could
not be accomplished"
There are several interesting facts that appear from the
language which we have quoted from DeTocquevlle:
Our judicial system is different from that of any other coun-
try in the world, in that the American judges, not only are vest
ed with the ordinary jurisdiction usually incident to that Office,
but also have immense political powers, which enable them prac-
tcany to outline and direct the policy of the nation as to the 30
cal, economic and industrial questions that constantly arise. The
qualifications for administering the ordinary jurisdiction of the