OCR Text |
Show . Conversations of ut dub , By Orestes A. Browttson The discussion of the administration administra-tion of the laws of the land is continued con-tinued this week, special reference being made to the distinction between the duties of the legislation, executive and judicial branches of the government. govern-ment. "When the political, legislative, executive ex-ecutive and judicial powers of government," govern-ment," remarked Diefenbach, "are united in the same hands, there may be despotism, but there is no state, no recognition, at least no guaranty, of freedom, no protection of natural rights. The glory of the American government is not in its democratic features, but in its wise and just division di-vision of the powers of government into distinct departments, a division, which has as its reason in the very, nature of government. With you the powers of government are distributed into four departments, the politcal, the legislative, the executive, and the judicial. ju-dicial. The political power is the convention; con-vention; the legislative power is vested vest-ed in the legislative assemblies, subject, sub-ject, in some instances, to a conditional condi-tional veto by the chief executive officer; of-ficer; the executive power for the Union is vested in the president; In the several states In the government alone, or in the governor and council, the judicial power is vested in the supreme su-preme court. The executive executes the law as declared and applied by the judiciary, and can execute it only' as so declared and applied. The legislative legisla-tive power may enact any law it please, authorized by the constitution, or in the state governments, not forbidden for-bidden by it. The political power or convention may authorize or forbid, through the constitution, what it pleases, not in contravention of natural justice, or what in this country is called the natural rights of man. The judiciary decides whether the political, politi-cal, as well as the legislative power, transcends the limits of natural justice, jus-tice, and eclares void the acts of either, when it judges that it does." "Therefore," added Father John, "the judicial is the more important department of government, as being that which restrains arbitrary and unjust un-just power, and protects the freedom, the rights of the subject or citizen. The judiciary protects the rights of the citizen in face of the political sovereign sov-ereign as well as in face of the legislature, legis-lature, the executive, or his fellow-citizens or subjects. The office of judge is, therefore, the most essential, the most vital, and the most dignified in the state. So long as the judiciary remains re-mains incorrupt and independent, so long as it firmly Insists on its rights and fearlessly performs its duties, though there may be political blunders, blun-ders, though there may be many impolitic impol-itic laws, and many foolish legislative enactments, there can be no gross oppression, op-pression, for substantial justice will be affirmed and injustice repressed. It is deeply to be deplored, that the high dignity and vital importance of the judiciary have, in a measure, been lost sight of in late years by the public, in consequence of the tendency, Insanely In-sanely encouraged, to threaten us in consequence of the unwearied efforts on on the part of politcal leaders and demagogues to render the political power absolute. The judge has come to be looked upon as a mere executive officer, whose official duty is simply to declare and apply to the case before the court the will of the political power, or the sovereign people; and he is regarded, even by honest and intelligent men, as transcending his powers, as abusing his office, if he attempts by his decisions to confine the will or pleasure of the political power within the limits of justice. There have been for several years strong and even successful movements throughout nearly all the states of the Union to subject the judges immediately imme-diately under the influence of public opinion; and the judges themselves, as they lose their independent position, posi-tion, are -beginning to lose sight of their high and solemn functions, and to regard it as their duty simply to give effect to public sentiment, which is, practically, the popular opinion, prejudice, or caprice of the time and place. It was avowedly to render the judges immediately responsible to popular opinion, that the radicals, who have inflicted so many irreparable evils upon our American community, demanded and have introduced into most of the states the constitutional clauses, which render the judges elective elec-tive by popular suffrage, elective for a brief term of years, and re-eligible. These changes destroy the Independence Independ-ence of the judiciary, and reintroduce the terrible evil from which our English Eng-lish ancestors struggled so hard to free themselves and which was one j of the causes of the American revolution revolu-tion itself that of making the judges dependent on the good will of the sovereign, sov-ereign, and the mere instruments of his pleasure. They have worked an almost al-most entire revolution in the judiciary, judic-iary, and prepared our republic to become be-come a popular or democratic absolutism, absolut-ism, in which the people, that is, party, that is, again, the demagogues, govern, without any legal or practical restraint on their irresponsible will." "The chief justice of the United States," remarked Winslow, 'though bred in a good school, seems to have been led to adopt the maxims of the Roman, rather than of the English law; and has sought rather to give effect ef-fect to the will of the political power, than to strengthen the defenses of individual in-dividual rights. In deserting the old Federal party, he seems to have gone over to political absolutism, the real character of which is concealed from nis vision, because it presents itself to him under the popular name of democracy. democ-racy. If we adopt the principle of the radical democracy, and pronounce the politcal power absolute, no fault can be found with the opinion of the chief justice in the Dred Scott case, save ao far as it is founded on the misapprehension misappre-hension of the facts in the case. But that principle, which I believe to be the real, pure democratic principle, and, therefore, te reason why I cannot be a democrat, is the principle of absolutism, ab-solutism, of Caesarism, just as much as it would be if the political power was vested In one man, instead of being, be-ing, as with us, vested in the people, or the convention. It makes the arbitrary arbi-trary will of the people supreme, and, therefore, right and wrong, conventional. conven-tional. With us the people are the state, and this doctrine makes the state absolute, free to do whatever it pleases. It makes the popular will, which In practice is simply popular opinion, the supreme law of the land, with no higher law to which that will is itself bound to conform." |