SECTION 18. THE JUDICIAL DEPARTMENT. Under the constitutional law of England, the judicial department is, and has always been, by far the weakest of the three departments of government. Nowhere else in the United States Constitution do we see such a radical advance as in the power and protection given to this department. The great power given to them of declaring acts of Congress unconstitutional has already been referred to, and will be treated of in detail in the chapter on the Judicial Department.17 The judicial department however is not allowed to encroach upon the proper jurisdiction of the legislative department. The duty of the judiciary is to interpret the Constitution and the acts of Congress, not to itself legislate.18 Judicial power is to be exercised for the purpose of giving effect to the will of the legislature, not that of the judges; 19 courts must expound the law as they find it.20 Courts cannot inquire into the motives of a legislative body in passing an act;" nor into the question whether an act is unwise, unjust or oppressive." The remedy for an unjust or inconvenient law lies with the people, through the election of legislative officers, not with the courts.28 The power of confiscation and banishment is not judicial, but legislative." No court can question the validity of an executed and ratified treaty,25 but the construction of treaties is within the 17 See Chapter V, and Marbury vs. Madison, 1 Cranch, 137. 18 Luther vs. Borden, 7 Howard, 1. "Osborn vs. The United States Bank, P. Wheaton, 738, 866. 20 Fletcher vs. Peck, 6 Cranch, 131; United States vs. Des Moines, etc., Ry., 142 U. S., 544; Angle vs. Chicago, etc., Ry., 151 U. S., 18; Ex parte McCardle, 7 Wallace, 514. " Id. 22 Powell vs. Pennsylvania, 127 U. 24 Cooper vs. Telfair, 4 Dallas, 19. province of the judiciary. The judicial department cannot encroach upon the executive. The writ of mandamus cannot be used to direct or control an executive officer in the discharge of an executive duty involving the exercise of judgment or discretion; 27 nor can the courts interfere in political questions.28 No nonjudicial powers can be conferred on United States courts or judges.29 SECTION 19. THE GOVERNMENT OF THE UNITED STATES AS A WHOLE. The powers granted to, and the restrictions placed upon, the three departments, will be treated of in detail in the following chapters. The effect of the elaborate system of checks and balances of the United States Government is to secure safety and stability in the Federal Government, but at the expense, to a certain extent, of freedom of political action. The two-thirds vote required to pass a bill over the President's veto may result in preventing either pernicious or necessary legislation. The same is true of the difficult method provided for amending the Constitution. Such a preference for stability above all else is characteristic of the extreme conservatism of the AngloSaxon race. The greatest merit of the Constitution, indeed, might be said to be its adaptability for the people who were to be governed by it. With any other race in all probability, its ponderous mechanism would have ceased to move on several * In re Metzger vs. Baline, 139 "Mississippi vs. Johnson, 4 Wal- 1; Craig vs. Missouri, 4 Peters, occasions in its history Georgia, 5 Peters, 20; State of Georgia vs. Stanton, 6 Wallace, 71; The Chinese Exclusion Case, 130 U. S., 602. "Hayburn's Case, 2 Dallas, 409; Interstate Commerce Commission vs. Brimson, 154 U. S., 485. and the government have fallen by its own weight. It is characteristic of the Anglo-Saxon, however, that while the slowest race to be moved, still of all races he is always the most able to meet a crisis. Such is the lesson of the Federal Constitution. No speculative theory has ever moved the country enough to secure the amendment of the Constitution, but where the practical necessity of the movement demanded action and relief which the Constitution could not afford, the remedy has always been found either in an amendment to the Constitution, or in some extra-constitutional, but not unconstitutional manner. Vol. II 8 CHAPTER III. THE LEGISLATIVE DEPARTMENT. SECTION 20. CONGRESS. The Constitution provides that all legislative powers granted to the United States government "shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives." SECTION 21. THE HOUSE OF REPRESENTATIVES. The House of Representatives is composed of members elected every two years by the people of the several States.2 Each State has a number of representatives in proportion to its population. The Constitution provides that "Representatives and direct taxes shall be apportioned among the several states which may be included within the Union, according to their respective members, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the State of New Hampshire United States Constitution, Arti- • United States Constitution, Article I, Section 1. cle I, Section 2, Clause 1. |