CHAPTER III.

THE JUDICIARY.

ITS OFFICE IN A GOVERNMEMT OF LAWS-ITS HIGH TRUSTS AND DUTIES-SUSPECTED AND CONVICTED PERSONS-HOW REGARDED-HABEAS CORPUS-EXTRA-CONSTITUTIONAL MEASURES-DEVICE FOR VIOLATING LAWS-BOLD USURPATIONSTHE UNION A BROTHERHOOD--ACCOUNTABILITY OF FEDERAL OFFICIALS TO THE JUDICIARY-THE EQUILIBRIUM OF THE SYSTEM.

THE judicial department of a free system of laws, is by far the most important of all the branches of the public service. With no legislative power or partisan influence, its sphere is confined to the execution of the weighty trusts devolved upon it, by the state on the one side, and the people on the other. It is purely an umpire, with power to enforce existing laws. It contemplates all public institutions as a party, and recognizes its duty to protect them. The people are also a party, and entitled, in like manner, to protection. The judicial power of the state, in this general sense, is called upon to exercise, what may be termed, political functions. The relations between the people and their Government are purely reciprocal. Obedience to laws is no more a duty of the former, than their honest enforcement by the latter. Their violation, by either, is a crime.

These reflections indicate the general office of the judiciary. It is the exclusive judge of what is due to the state and what is due to the citizen.

The constitution of the Federal Judiciary limits its power to nine specific trusts :

1. "To all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made or which shall be made under their authority.

2. "To all cases affecting ambassadors, other public ministers, and consuls.

3. "To all cases of admiralty and maritime jurisdiction.

4. "To controversies to which the United States shall be a

party.

5. "To controversies between two or more States.

6. "Between a State and the citizens of another State.

7. "Between citizens of different States.

8. "Between citizens of the same State, claiming lands under grants of different States.

9. "Between a State and the citizens thereof and foreign states, citizens, or subjects."

The first of these specific delegations of power, is far more general and comprehensive than the others, extending to all cases in law and equity arising under the compact of Union. If this language bears any signification, beyond a mere limitation of jurisdiction to the federal system, it makes the judges of the Supreme Court of the United States a tribunal, with exclusive power to determine, not only the rights of litigant parties in suit, but the constitutionality of all federal laws which shall be brought before it for enforcement. In this respect, the "judicial power," as it is denominated, is intrusted with the very highest of political functions. It is as much its duty to interdict the enforcement of illegal acts as to execute those which are legal.

It has been found, in the practical life of every description of administration, that the judicial authority has maintained, through every trial, a far higher tone; more incorruptible integrity; more capacity and disposition to allay excitement, reconcile differences, and adjust disputes personal and general, than any other branch of the public service. Less ostentatious than the legislature, unobtrusive and almost unnoticed in its deliberations; earnest, profound and impartial in its decisions, it commands public confidence, and exacts a willing obedience to its awards. It is preeminently the tribunal of the people; an umpire, with power, not only to determine all controversies between persons, but an international commission to adjust questions of difference between the States and the Union and the citizen and the Union. 1

In the enforcement of all local laws, embracing the internal administration of justice through the whole range of civil institu

tions, the collection of debts, the punishment of crime, the maintenance of order, the judiciary is the mainspring of the political machine. It is, to all intents and purposes, the animating principle of the state.

Under general regulations, covering the ordinary intercourse of life, it exercises absolute power. The character of its administration is indicated by the fact, that its decisions constitute a body of laws, of higher merit and wider influence than those ordained by the legislature. It is impossible indeed to conceal this feature of the government of the States and the Union. That there is something in the structure of these great departments of administration, or in the nature of the duties assigned to each, which enables the judiciary to command higher qualifications and intellect, we do not question.

In this connection it is a noteworthy fact that of all the complaints made by parties and sections against the general Administration, involving, in many cases, alleged violations of the Constitution, and in others, of fundamental principles of political economy, not one has been laid at the door of the judiciary. Usurpation of authority has been charged upon the Executive and the legislature, and, at times, a general tendency to disregard constitutional obligations and duties manifested; but we know of no instance, beyond the lowest partisan circles, where the judicial authority of the States or the nation has been held responsible for the least offence of the kind.

It must not be admitted, in explanation of this, that its office is comparatively of little account. On the contrary, in a government of laws, it is by far the highest, most important and responsible of all the institutions of state. Its range is broader; its duties more weighty and elaborate; its government more complete and universal; its trusts more sacred; and, we may add, its decisions more satisfactory, than any other department. It is the state, to all practical intents and purposes. When the privilege of the writ of habeas corpus was partially suspended in England, Mr. Burke denounced and declared it a dissolution of government. In this denunciation we see the true theory of the English Constitution. It is a free system of laws, and such a system is impossible

on any other basis than the maintenance of a free, impartial, and unrestricted judiciary. This freedom, too, must be absolute. It must be, as Goethe says, a courageous magistracy," for that is the greatest blessing a free people can have. The rights of the Habeas Corpus Act, under it, are inalienable and indestructible. Their suspension, by whomsoever ordered, undermined and destroyed the whole scheme of government. It was not a mere political offence, but a fatal blow at the system, which alone was the object of preservation and the source of authority. There was no extravagance in the speech of Mr. Burke, as will be seen by an examination of the duties of the judiciary.

It is the province of the legislature to enact laws for the punishment of crime; but crime exists alone by the decision of the courts. The entire innocence of parties charged with offence, is presumed until they are convicted by the tribunals of justice. Hence the classification of offenders, as suspected and convicted persons. This distinction is clearly recognized in the laws of the States, and in the Constitution and laws of the Union. While no limitation is put upon the judges, in dealing with convicts, simply because they are outlaws, they are charged with the greatest circumspection, and bound to the severest restraints, touching the treatment of persons suspected of crime.

The reason of this is too obvious to justify comment. It is the most vital feature of a government of laws. There must be certain written evidence of guilt submitted to a peace officer before suspicion can legally attach to the offender. He cannot be held as a suspected person on any other condition. If he has violated the law, let the proof of the facts be laid before the judges of the law. It is just as reasonable to expect the judiciary to be proficient in the military service as to suppose that soldiers are qualified to discharge the duties of the legal profession.

The Federal Constitution provides, what was supposed, at the time, to be the amplest precautionary restrictions, upon any and all persons having the right of arrest and imprisonment, against the abuse of such right and its corresponding injury. It declares, for instance, that "no warrant shall issue, but upon probable cause, supported by oath or affirmation;" and "no person shall be held

in answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury; " and " no person shall be deprived of life, liberty, or property, without due process of law; and "excessive bail shall not be required."

These provisions apply exclusively to persons suspected of crime, and, in no case, to persons convicted of crime. There is nothing in them but the exercise of a wise and humane precaution against the abuse of power, by magistrates or others in authority.

The direct office of the writ of habeas corpus is to recover the freedom of a citizen wrongfully taken away.

This law was enacted in aid of the provisions of the Constitution quoted, and exclusively for the benefit of suspected persons. It recognizes the possibility of illegal imprisonment, in spite of the protective features of the organic law, to which we have referred, and provides for a rehearing of the case.

There is nothing new in all these ordinances and regulations. They are a part, and a necessary part, of the machinery of all free governments. They are the very features of such a system which distinguish it from absolutism. They take away, not only all right to exercise individual will and judgment, but every semblance of authority to do so. They make the law supreme, by prescribing certain forms of proceeding; and then, conceding the possibility of its evasion, they provide the means of recovering the freedom of a citizen thus illegally deprived of his liberty.

All these safeguards against oppression are of no possible account without an appropriate agency in the government to enforce them. A right, without a corresponding remedy, in the event of its violation, is a mere word of promise to the ear. The Federal Constitution is not only a chart, pointing out political shoals and treacherous currents, but a complete system of political navigation. It is a state, fixing with almost mathematical precision, the rights of persons and property, and on this basis giving power to enact and enforce laws. It was intended that these rights should be maintained precisely as they are placed in the compact. For this distinct and avowed purpose, among others, the judiciary was organized. Its constitution and powers are explicit. It is made a coördinate department of the government, its jurisdiction extending