THE THREE DEPARTMENTS OF GOVERNMENT 1

MERRILL v. SHERBURNE.

(Superior Court of New Hampshire, 1818. 1 N. H. 199, 8 Am. Dec. 52.) [Appeal from the probate court of Rockingham county, New Hampshire. This court allowed the probate of an instrument as the will of Nathaniel Ward, in which all his property was devised to Merrill. Sherburne, one of Ward's heirs, appealed from this decision to the Superior Court, where this decree was reversed, and, after refusing a motion for a new trial, the court rendered final judgment for Sherburne. The legislature, on Merrill's petition, passed an act granting to him a new trial in the Superior Court. Sherburne moved to quash the proceedings thus begun by Merrill, as based on an unconstitutional exercise of judicial power by the legislature.]

WOODBURY, J. *** 1. No particular definition of judicial powers is given in the Constitution; and considering the general nature of the instrument, none was to be expected. Critical statements of the meanings, in which all important words were employed, would have swollen into volumes; and when those words. possessed a customary signification, a definition of them would have been useless. But "powers judicial," "judiciary powers," and "judicatories" are all phrases used in the Constitution; and though not particularly defined, are still so used to designate with clearness, that department of government, which it was intended should interpret and administer the laws. On general principles therefore, those inquiries, deliberations, orders and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employments of judicial and legislative tribunals. The former decide upon the legality of claims and conduct; the latter make rules, upon which, in connection with the Constitution, those decisions should be founded. It is the province. of judges to determine what is the law upon existing cases. Bac. Stat. 11; Ogden v. Blackledge, 2 Cranch, 272, 2 L. Ed. 276; Dash v. Van Kleeck, 7 Johns. (N. Y.) 498, 5 Am. Dec. 291. In fine, the law is applied by the one, and made by the other. To

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 50-56. For additional cases under this topic, see cases under The Federal Execu tive, post, pp. 35-42.

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2 "What constitutes the distinction between a legislative and judicial act? The former establishes a rule regulating and governing in matters or transactions occurring after its passage. The other determines rights or obliga

do the first, therefore, to compare the claims of parties with the laws of the land before established, is in its nature a judicial act. But to do the last, to pass new rules for the regulation of new controversies, is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law, "as a rule of civil conduct" (1 B1. Com. 44), because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated. * * *

The grant of a new trial belongs to the courts of law from immemorial usage. The power to grant a new trial is incidental to their other powers. It is a judgment in relation to a private controversy; affects what has already happened; and results from a comparison of evidence and claims with the existing laws. It will not be denied, that the consideration and decision, by the Superior Court, of the motion for this same new trial was an exercise of judicial power. If so a consideration and decision upon the same subject by the legislature must be an exercise of power of the same description; for what is in its nature judicial to-day, must be judicial to-morrow and forever. The circumstance, also, that the legislature themselves did not proceed to make a final judgment on the merits of the controversy between these parties cannot alter the character of the act granting a new trial. To award such a trial was one judicial act, and because they did not proceed to perform another, by holding that trial before themselves, the first act did not become any more or less a judicial one. We apprehend, therefore, that the character of the act under consideration must be deemed judicial. This position will probably be less doubted, than the position that our Constitution has not confided to the legislature the power to pass such an act. But that power, if confided, must be exercised by the legislature as a branch of the judiciary, or under some special provision, or as a mere legislative body.

2. Our next inquiry, then, is, whether they, as a branch of the judiciary, are enabled to exercise it.

* At the formation of our present Constitution, whatever might have been the prior connection between the legislative and judicial departments, a great solicitude existed to keep them, thence forward, on the subject of

tions of any kind, whether in regard of persons or property, concerning matters or transactions which already exist and have transpired ere the judicial power is invoked to pass on them." Thornton, J., in Smith v. Strother, 68 Cal. 194, 196, 197, 8 Pac. 852, 853, 854 (1885).

"The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other provides what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation on which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions." Field, J. (in dissenting opinion), in Sinking Fund Cases, 99 U. S. 727, 761, 25 L. Ed. 504 (1879).

private controversies, perfectly separate and independent. 1 B1. C. Apx. A: Letter of Judges Sup. Court of United States, April, 1782. It was well known and considered, that "in the distinct and separate existence of the judicial power consists one main preservative of the public liberty" (Bl. Com. 269); that, indeed, "there is no liberty, if the power of judging be not separated from the legislative and executive powers" (Montesquieu, B. 11, Ch. 6). In other words that "the union of these two powers is tyranny" (7 Johns. 508); or, as Mr. Madison observes, may justly be "pronounced the very definition of tyranny" (Fed. No. 47); or, in the language of Mr. Jefferson, "is precisely the definition of despotic government” (Notes on Vir. 195).

Not a single Constitution therefore, exists in the whole Union, which does not adopt this principle of separation as a part of its basis. Fed. No. 81; 1 Bl. Apx. 126, Tuck. Ed.; 3 Niles' Reg. 2; 4 Niles' Reg. 400. We are aware, that in Connecticut, till lately, and still in New York, a part of their legislature exercise some judicial authority. 4 Niles' Reg. 443. This is probably a relic of the rude and monarchical governments of the Eastern world; in some of which no division of powers existed in theory, and very little in practice. Even in England the executive and judicial departments were once united (1 Bl. 267; 2 Hutch. His. 107); and when our ancestors emigrated hither, they from imitation, smallness of numbers and attachment to popular forms, vested often in one department not only distinct, but sometimes universal powers (2 Wil. Wks. 50; 1 Minot, His. 27; 1 Hutch. His. 30; 2 Hutch. His. 250, 414).

The practice of their assemblies to perform judicial acts (Calder and Wife v. Bull et al., 3 Dal. 386, 1 L. Ed. 648) has contributed to produce an impression, that our legislatures can also perform them. But it should be remembered, that those assemblies were restrained by no Constitutions, and that the evils of this practice (Fed. No. 44), united with the increase of political science have produced the very changes and prohibitions before mentioned. The exceptions in Connecticut and New York do not affect the argument; because those exceptions are not implied, but detailed in specific terms in their charters; and this power, also, as in the House of Lords in England, is in those states to be exercised in the form of judgments and not of laws; and by one branch, and not by all, of the legislature. 4 Niles' Reg. 444. "The entire legislature can perform no judiciary act." Fed. No. 47. * *

One great object of Constitutions here (Fed. No. 81) was to limit the powers of all the departments of government (Bill of Rights, arts. 1, 7, 8, 38); and our Constitution contains many express provisions in relation to them, which are wholly irreconcilable with the exercise of judicial powers by the legislature, as a branch of the judiciary. That clause, which confers upon the "general court" the

authority "to make laws," provides at the same time, that they must not be "repugnant or contrary to the Constitution." One prominent reason for creating the judicial, distinct from the legislative department, was, that the former might determine when laws were thus "repugnant," and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments. But the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure revise or alter any of the judgments of the judiciary. * * * * [The law was held also to violate a constitutional prohibition against retrospective legislation.]

The long usage of our legislatures to grant new trials has also been deemed an argument in favor of the act under consideration. But that usage commenced under colonial institutions, where legislative powers were neither understood nor limited as under our present constitution. Since the adoption of that, the usage has been resisted by sound civilians, and often declared void by courts of law. Though no opinions have been published, and though the decisions have been contradictory, yet the following ones appear by the records to have adjudged such acts void: Gilman v. McClary, Rock., Sept., 1791; Chickering v. Clark, Hills; Butterfield v. Morgan, Ches., May, 1797; Jenness et al., Ex'rs, v. Seavey, Rock., Feb. 1799. Nor could it be pretended on any sound principles, that the usage to pass them, if uninterrupted for the last twenty-seven years, would amount to a justification, provided both the letter and spirit of the written charter of our liberties forbid them. Proceedings quashed.

CARTER v. COMMONWEALTH.

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(Supreme Court of Appeals of Virginia, 1899. 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310.)

[Error to the Circuit Court of Lynchburg. Carter was informed by his attorney that his presence in court was necessary at once in a case in which he was a party. He falsely telegraphed that he was sick and could not come, seeking to obtain a continuance of his case. When ordered to appear before the court to show cause why he should not be punished for contempt, Carter made an excuse for his conduct and asked for a jury trial. The court held his excuse insufficient and sentenced him to pay a fine of $25 and be imprisoned for two days, without a jury trial. Other facts appear in the opinion.]

KEITH, P. J. ** * [A Virginia statute of 1830-31 was amended in 1897-98 to read as follows:]

Sec. 3768. The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases, which are hereby

The Constitution now in force (article 6, § 1) provides: "There shall be a supreme court of appeals, circuit courts and county courts. The jurisdiction of these tribunals, and of the judges thereof, except so far as the same is conferred by this Constitution, shall be regulated by law." In a subsequent portion of the instrument, corporation courts are also provided for the cities of the state. These courts do not derive their existence from the legislature. They are called into being by the Constitution itself, the same authority which creates the legislature and the whole framework of state government.

What was the nature and character of the tribunals thus instituted? Our conception of courts, and of their powers and functions, comes to us through that great system of English jurisprudence known as the "common law," which we have adopted and incorporated into the body of our laws.

That the English courts have exercised the power in question from the remotest period does not admit of doubt. Said Chief Justice Wilmot: "The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt acted in the face of the court; and the issuing of attachments by the supreme court of justice in Westminster Hall for contempts out of court stands on the same immemorial usage which supports the whole fabric of the common law. It is as much the lex terræ, and within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges of its introduction, but can find none. It is as ancient as any other part of the common law. There is no priority or posteriority to be found about it. It cannot, therefore, be said to invade the common law. It acts in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. Truth compels me to say that the mode of proceeding by attachment stands upon the very same foundation as trial by jury. It is a constitutional remedy in particular cases, and the judges in those cases are as much bound to give an activity to this part of the law as to any other." 3 Camp. Lives of Ch. Just. p. 153.

declared to be direct contempts, all other contempts being indirect contempts. First. Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice.

Second. Violence or threats of violence to a judge or officer of the court or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court.

Third. Misbehavior of an officer of the court in his official character. Fourth. Disobedience or resistance of an officer of the court, juror or witness to any lawful process, judgment, decree or order of the said court.

[If requested by the defendant, provision was made for the trial by jury of indirect contempts.]