Article 3, Section 2, Clause 1

[Volume 4, Page 252]

Document 30

James Wilson, Comparison of Constitutions, Lectures on Law

1791Works 1:326--31

In England, the judges of the superiour courts do not now, as they did formerly, hold their commissions and their salaries at the pleasure of the crown; but they still hold them at the pleasure of the parliament: the judicial subsists, and may be blown to annihilation, by the breath of the legislative department. In the United States, the judges stand upon the sure basis of the constitution: the judicial department is independent of the department of legislature. No act of congress can shake their commissions or reduce their salaries. "The judges, both of the supreme and inferiour courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." It is not lawful for the president of the United States to remove them on the address of the two houses of congress. They may be removed, however, as they ought to be, on conviction of high crimes and misdemeanors.

The judges of the United States stand on a much more independent footing than that on which the judges of England stand, with regard to jurisdiction, as well as with regard to commissions and salaries. In many cases, the jurisdiction of the judges of the United States is ascertained and secured by the constitution: as to these, the power of the judicial is coordinate with that of the legislative department. As to the other cases, by the necessary result of the constitution, the authority of the former is paramount to the authority of the latter.

It will be proper to illustrate, at some length, the nature [Volume 4, Page 253] and consequences of these important doctrines concerning the judicial department of the United States; and, at the same time, to contrast them with the doctrines held concerning the same department in England. Much useful and practical information may be drawn from this comparative review.

It is entertaining, and it may be very instructive, to trace and examine the opinions of the English courts and lawyers concerning the decision, which may be given, in the judicial department, upon the validity or invalidity of acts of parliament.

In some books we are told plainly, and without any circumlocution or disguise--that an act of parliament against law and reason is, therefore, void--that, in many cases, the common law will control acts of parliament; and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed; the common law will control it, and adjudge such act to be void. Some statutes are made against law and right, which those who made them perceiving, would not put them in execution--that an act of parliament made against natural equity, as to make a man judge in his own cause, is void in itself; for jura naturae immutabilia, and they are leges legum.

My Lord Chief Justice Holt expresses himself, upon this delicate and embarrassing subject, in his usual blunt and decided manner: "It is a very reasonable and true saying, that if an act of parliament should ordain, that the same person should be a party and a judge, or, which is the same thing, judge in his own cause; it would be a void act of parliament; for it is impossible that one should be judge and party; for the judge is to determine between party and party, or between the government and the party; and an act of parliament can do no wrong; though it may do several things, that look pretty odd."

These doctrines and sayings, however reasonable and true they appear to be, have been, nevertheless, deemed too bold; for they are irreconcilable with the lately introduced positions concerning the supreme, absolute, and uncontrollable power of the British parliament. Accordingly, Sir William Blackstone, on the principles of his system, expresses himself in the following manner, remarkably guarded and circumspect, as to the extent of the parliamentary power. "If there arise out of acts of parliament, collaterally, any absurd consequences, manifestly contradictory to common reason; they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely--that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done, which is unreasonable; I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it: for that were to set the judicial power above that of the legislature, which would be subversive of all government." "No court has power to defeat the intent of the legislature, when couched in such evident and express words, as to leave no doubt concerning its intention."

The successour of Sir William Blackstone in the Vinerian chair walks in his footsteps. "It is certain," he admits, "no human authority can rightfully infringe or abrogate the smallest particle of natural or divine law; yet a British judge, of highly deserved estimation, seems in some measure unguarded in asserting from the bench, that an act of parliament made against natural equity, is void in itself. The principle is infallibly true; the application of it, and the conclusion, dangerous. We must distinguish between right and power; between moral fitness and political authority. We cannot expect that all acts of legislators will be ethically perfect; but if their proceedings are to be decided upon by their subjects, government and subordination cease."

It is very true--we ought to "distinguish between right and power:" but I always apprehended, that the true use of this distinction was, to show that power, in opposition to right, was devested of every title, not that it was clothed with the strongest title, to obedience. Is it really true, that if "the parliament will positively enact an unreasonable thing--a thing manifestly contradictory to common reason--there is no power that can control it?" Is it really true that such a power, vested in the judicial department, would set it above the legislature, and would be subversive of all government? If all this is true; what will the miserable, but unavoidable consequence be? Is it possible, in the nature of things, that all which is positively enacted by parliament can be decreed and enforced by the courts of justice? It will not be pretended. The words in two different laws may be clearly repugnant to one another. The law supposes that, sometimes, this is the case; and accordingly has provided, as we are told in the Commentaries, that, in this case, the later law takes place of the elder. "Leges posteriores, priores contrarias abrogant," we are told, and properly told, is a maxim of universal law, as well as of the English constitutions. Suppose two such repugnant laws to be produced in the same cause, before the same court: what must it do? It must control one, or obey neither. In this last instance, the remedy would be worse than the disease: but there is not the least occasion to have recourse to this desperate remedy. The rule which we have cited from the Commentaries, shows the method that should be followed. In the case supposed, the first law is repealed by the second: the second, therefore, is the only existing law.

Two contradictory laws, we have seen, may flow from the same source: and we have also seen, what, in that case, is to be done. But two contradictory laws may flow likewise from different sources, one superiour to the other: what is to be done in this case?

We are informed, in another part of the Commentaries, that, "on the two foundations of the law of nature, and the law of revelation, all human laws depend; that is to say, no human laws should be suffered to contradict these"--that, if any human law should enjoin us to commit what is prohibited by these, we are bound to transgress that human law, or else we must offend both the natural and the divine. What! are we bound to transgress it?--And are the courts of justice forbidden to reject it? Surely these positions are inconsistent and irreconcilable.

But to avoid the contradiction, shall it be said, that we are bound to suppose every thing, positively and plainly [Volume 4, Page 254] enacted by the legislature, to be, at least, not repugnant to natural or revealed law? This may lead us out of intricate mazes respecting the omnipotence; but, I am afraid, it will lead us into mazes equally intricate and more dangerous concerning the infallibility of parliament. This tenet in the political creed will be found as heterodox as the other.

"I know of no power," says Sir William Blackstone, "which can control the parliament." His meaning is obviously, that he knew no human power sufficient for this purpose. But the parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this authority superiour to any thing that can be enacted by parliament? Is not this superiour authority binding upon the courts of justice? When repugnant commands are delivered by two different authorities, one inferiour and the other superiour; which must be obeyed? When the courts of justice obey the superiour authority, it cannot be said with propriety that they control the inferiour one; they only declare, as it is their duty to declare, that this inferiour one is controlled by the other, which is superiour. They do not repeal the act of parliament: they pronounce it void, because contrary to an overruling law. From that overruling law, they receive the authority to pronounce such a sentence. In this derivative view, their sentence is of obligation paramount to the act of the inferiour legislative power.

In the United States, the legislative authority is subjected to another control, beside that arising from natural and revealed law; it is subjected to the control arising from the constitution. From the constitution, the legislative department, as well as every other part of government, derives its power: by the constitution, the legislative, as well as every other department, must be directed; of the constitution, no alteration by the legislature can be made or authorized. In our system of jurisprudence, these positions appear to be incontrovertible. The constitution is the supreme law of the land: to that supreme law every other power must be inferiour and subordinate.

Now, let us suppose, that the legislature should pass an act, manifestly repugnant to some part of the constitution; and that the operation and validity of both should come regularly in question before a court, forming a portion of the judicial department. In that department, the "judicial power of the United States is vested" by the "people," who "ordained and established" the constitution. The business and the design of the judicial power is, to administer justice according to the law of the land. According to two contradictory rules, justice, in the nature of things, cannot possibly be administered. One of them must, of necessity, give place to the other. Both, according to our supposition, come regularly before the court, for its decision on their operation and validity. It is the right and it is the duty of the court to decide upon them: its decision must be made, for justice must be administered according to the law of the land. When the question occurs--What is the law of the land? it must also decide this question. In what manner is this question to be decided? The answer seems to be a very easy one. The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the latter is void, and has no operation. In this manner it is the right and it is the duty of a court of justice, under the constitution of the United States, to decide.

This is the necessary result of the distribution of power, made, by the constitution, between the legislative and the judicial departments. The same constitution is the supreme law to both. If that constitution be infringed by one, it is no reason that the infringement should be abetted, though it is a strong reason that it should be discountenanced and declared void by the other.

The effects of this salutary regulation, necessarily resulting from the constitution, are great and illustrious. In consequence of it, the bounds of the legislative power--a power the most apt to overleap its bounds--are not only distinctly marked in the system itself; but effectual and permanent provision is made, that every transgression of those bounds shall be adjudged and rendered vain and fruitless. What a noble guard against legislative despotism!

This regulation is far from throwing any disparagement upon the legislative authority of the United States. It does not confer upon the judicial department a power superiour, in its general nature, to that of the legislature; but it confers upon it, in particular instances, and for particular purposes, the power of declaring and enforcing the superiour power of the constitution--the supreme law of the land.

This regulation, when considered properly, is viewed in a favourable light by the legislature itself. "It has been objected," said a learned member of the house of representatives, in a late debate, "that, by adopting the bill before us, we expose the measure to be considered and defeated by the judiciary of the United States, who may adjudge it to be contrary to the constitution, and therefore void, and not lend their aid to carry it into execution. This gives me no uneasiness. I am so far from controverting this right in the judiciary, that it is my boast and my confidence. It leads me to greater decision on all subjects of a constitutional nature, when I reflect, that, if from inattention, want of precision, or any other defect, I should do wrong, there is a power in the government, which can constitutionally prevent the operation of a wrong measure from affecting my constituents. I am legislating for a nation, and for thousands yet unborn; and it is the glory of the constitution, that there is a remedy for the failures even of the legislature itself."

It has already appeared, that the laws, in England, respecting the independency of the judges, have been construed as confined to those in the superiour courts. In many courts, nay in almost all the courts, which have jurisdiction in criminal, even in capital cases, the judges are still appointed and commissioned occasionally, and at the pleasure of the crown. Those courts, though possessing only a local jurisdiction, and confined to particular districts, are yet of a general nature, and are universally diffused over the kingdom. Such are the courts of oyer and terminer and general gaol delivery. They are held twice in every year in every county of the kingdom, except the four northern ones, in which they are held only once, and London and Middlesex, in which they are held eight times. By [Volume 4, Page 255] their commissions, the judges of those courts have authority to hear and determine all treasons, felonies, and misdemeanors; and to try and deliver every prisoner who shall be in the gaol, when they arrive at the circuit town, whenever indicted, or for whatever crime committed. Sometimes also, upon particular emergencies, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment. Those courts are held before the king's commissioners, among whom are usually--but not necessarily, as it would seem--two judges of the courts at Westminster.

It is somewhat surprising, that, in a nation where the value of liberty and personal security has been so long and so well known, less care has been taken to provide for the independency of the judges in criminal than in civil jurisdiction. Is property of more consequence than life or personal liberty? Is it more likely to become the selected and devoted object of ministerial vengeance or resentment? If peculiar precaution was necessary or proper to ensure the independence of the judges on the crown, one would think it most reasonable to apply that precaution to the independence of those judges, who exercise criminal jurisdiction. Even treason may be tried before judges, named, for the occasion, and during pleasure, by him, who, in law, is supposed to be personally as well as politically offended.

To the constitution of the United States, and to those who enjoy the advantages of that constitution, no judges are known, but such as hold their offices during good behaviour.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 30
The University of Chicago Press

The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.