Article 3, Section 1
[Volume 4, Page 162]
James Wilson, Government, Lectures on Law1791Works 1:296--97
The third great division of the powers of government is the judicial authority. It is sometimes considered as a branch of the executive power; but inaccurately. When the decisions of courts of justice are made, they must, it is true, be executed; but the power of executing them is ministerial, not judicial. The judicial authority consists in applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases, in which the manner or principles of this application are disputed by the parties interested in them.
The very existence of a dispute is presumptive evidence, that the application is not altogether without intricacy or difficulty. When intricacy or difficulty takes place in the application, it cannot be properly made without the possession of skill in the science of jurisprudence, and the most unbiassed behaviour in the exercise of that skill. Clear heads, therefore, and honest hearts are essential to good judges.
As all controversies in the community respecting life, liberty, reputation, and property, must be influenced by their judgments; and as their judgments ought to be calculated not only to do justice, but also to give general satisfaction, to inspire general confidence, and to take even from disappointed suiters--for in every cause disappointment must fall on one side--the slightest pretence of complaint; they ought to be placed in such a situation, as not only to be, but likewise to appear superiour to every extrinsick circumstance, which can be supposed to have the smallest operation upon their understandings or their inclinations. In their salaries, and in their offices, they ought to be completely independent: in other words, they should be removed from the most distant apprehension of being affected, in their judicial character and capacity, by any thing, except their own behaviour and its consequences.
"We are," says a very sensible writer on political subjects, "to look upon all the vast apparatus of government as having [Volume 4, Page 163] ultimately no other object or purpose, but the distribution of justice. All men are sensible of the necessity of justice to maintain peace and order; and all men are sensible of the necessity of peace and order for the maintenance of society." "The pure, and wise, and equal administration of the laws," says Mr. Paley, "forms the first end and blessing of social union." But how can society be maintained--how can a state expect to enjoy peace and order, unless the administration of justice is able and impartial? Can such an administration be expected, unless the judges can maintain dignified and independent characters? Can dignity and independence be expected from judges, who are liable to be tossed about by every veering gale of politicks, and who can be secured from destruction, only by dexterously swimming along with every successive tide of party? Is there not reason to fear, that in such a situation, the decisions of courts would cease to be the voice of law and justice, and would become the echo of faction and violence?
The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.
© 1987 by The University of Chicago