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and the fundamental laws on which it vested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them.” Chancellor Kent has justly said: “From the mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence on the people, by the means of frequent periodical elections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power, that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights. It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in violation of the constitution, or of any provision of it, null and void.”(a) The question whether a law is void
(a) I Kent's Com. p. 450.
for its repugnancy to the constitution, is at all times, a question of much delicacy, which ought seldom, if ever, to be decided in a doubtful case. It is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.(a) In one case,(b) Buchanan, Ch. J., remarks: “It has been said, that a legislative act should not be pronounced unconstitutional or invalid, in a doubtful case; nor should it, where the doubt is bona fide, and well founded, and not the result of disinclination to deny the authority of the legislature, which all must feel, which none should yield to in violation of a solemn duty. But where a judge is satisfied, upon full consideration, that an act of the legislature is contrary to the constitution of the United States, the supreme law which he is bound to obey, and which must prevail over any act that comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left for him, is honestly and fearlessly to do his duty, from the faithful discharge of which, however unpleasant the task, no upright judge can shrink, if he will. On the other hand, a judge should not suffer himself to be betrayed to pronounce an act unconstitutional or invalid, on insufficient grounds, by a morbid apprehension that a contrary decision might be ascribed to the want of a proper sense of judicial duty.”
(a) Fletcher v. Peck, 6 Cranch R. 87. (b) The Regents of the University of Maryland v. Williams, 9 Gill & Johns. 383.
§ 404. HAviNG in the preceding chapter considered the origin and history of legislation, and the subject of legislative power, we shall now enter upon the second subdivision of our subject, that, of the construction of statutes. The question of the bounds of legislative and judicial interpretation, lies at the threshold of this part of our inquiries, and is one claiming the consideration of all whose duty it is to interpret the statute laws of a nation, which in this country, constitutes the greatest part of our entire judicial system. It should be the aim of judges, in all cases, to keep within the legitimate bounds of interpretation, and studiously to avoid such latitude of interpretation as would amount to judicial legislation, rather than judicial interpretation. In all that we shall annote on this subject we are indebted to the pen of the English author on statutes, Mr. Dwarris.
§ 405. It is a remarkable fact, that in an enlightened age, and among so many intelligent inquirers into the philosophy, both of history and of law, so little attention should have been paid to the consideration of the important question,-What are the principles upon which the jurisprudence of a country ought to proceed? Certainty in the law, to a positive extent, is unfortunately unattainable; immutability of laws, even if it were desirable, (which it surely is not) is still more impracticable. An extensive alteration in the condition of the people, a total change of circumstances, must, at any time, induce some change of institutions, and render absolutely necessary a sensible modification of the laws. Laws must be accommodated—or laws will accommodate themselves—to the growing necessities of mankind, and the varying state and condition of human society. “Comment enchainer l'action du temps ? Comment s' opposer au cours des événements, ou ä la pente insensible des mours ? Comment connaitre et calculer d’ avance ce que l'expérience seule peut nous révéler? La prévoyance peute-elle jamais s'étendre a des objets que la pensée ne peut atteindre 7–Les hommes ne se reposent jamais; ils agissent toujours: et ce mouvement, qui ne s'arrête pas, et dont les effets sont diversement modifiés parles circonstances, produit, à chaque instant, quelque combinaison nouvelle—quelque nouveau fait, quelque résultat nouveau.(a) § 406. Again, with the highest degree of certainty of which laws are susceptible, doubts will still arise upon the sense of enactments, or as to their application. In all cases where the legislature has not defined with persect precision the exact nature of the subject of its provisions, some authority will be required to decide upon the meaning of the terms which it employs, or the cases to which its provisions shall extend. § 407. In ancient times, cases of the first impression, and all matters presenting any serious doubt or difficulty, were usually “adjourned into parliament, to be resolved and decided there.”(b) To this effect Bracton observes, —“Si aliqua nova et inconsueta emerserint quae nunquam prius evenerunt, et obscurum et difficile sit eorum judicium, tunc ponantur judicia in respectu usque ad Magnam Curiam, ut ibi per consilium curae terminetur.”(c) For the high court of parliament met every
(a) Discours Préliminaire du premier projet de Code Civil, p. 29.
year, * or oftener if need was," for the o maintenance and execution of the laws."(a) $ 408. In like manner it has been said in modern times, (and the sentiment has been before noticed with approbation,) parliament is always at hand, to supply deficiencies and to correct mistakes.(b) Is the legislature, then, to be interrogated, every time a doubt arises upon the construction of a statute, to decide particular disputes ? Assuredly not. For would not this be endless ? Would it not impair the usefulness, and derogate from the dignity of the judicature ? Would it not give room for partiality and oppression ? * Forcer le magistrat de recourir au législateur, ce serait admettre le plus funeste des principes; ce serait renouveler parmi nous la désastreuse législation des Rescrits. Car, lorsque le legislateur intervient pour prenoncer sur des affaires nées et vivement agittées entre particuliers, il n'est pas plus à l' abri des surprises que les tribunaux." And under such circumstances certainly; " On a moins a redoubter l' arbitraire réglé, timide et circonspect d' un magistrat que peut être réforme, et qui est soumis a la action en forfaiture, que l'arbitraire absolu d'un pouvoir indépendant, qui n'est jamais responsable. Des lois intervenues sur des affaires privées seraient souvent suspectes de partialites et toujours elles seraient rétroactives et injustes pour ceux dont le litige aurait précédé l' intervention de ce lois. De plus, le recours au législateur entraineraît des longeurs fatales au justiciable," &c.(c) $ 409. It follows, that the questions of construction before adverted to,—viz. the meaning of the terms employed by the legislature, and the cases to which the provisions of the law are applicable, must be left to the
(a) 4 E. 3, ca. 14 ; 36 E. 3, ca. 20. (c) Discours Préliminaire, &c., p. 26. (b) Dwarris on Statutes, p. 721.