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§ 286. “The Judicial Power.”

SEPARATION OF POWERS.—The judicial power is the power appropriate to the third great department of government, and is distinct from both the legislative and the executive powers. The judicial function is that of hearing and determining questions which arise as to the interpretation of the law, and its application to particular cases. “The distinction between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law.” Per Marshall, C.J. (U.S.), Wayman v. Southard, 10 Wheat. 46; Cooley's Constitutional Limitations (5th Ed.) 109.




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But though the distinction between the three departments is broad and fundamental, it is difficult to define their powers exactly. Judicial acts have, of necessity, points of contact with both executive and legislative acts. In Great Britain, owing to the supremacy of the legislative power, the distinction has not been the subject of decision in the Courts, though it is recognized by commentators. See Wharton's Judicial Dictionary, sub. tit. Judges.

In this Constitution, however, each power is vested in distinct organs, and it becomes important to define the principles on which the distinction is based. A similar separation of functions is prescribed in the Constitution of the United States, as well as in the Constitutions of the States of the Union; and also, though to a less degree, in the Constitution of the Canadian Dominion. American and Canadian decisions are therefore important, but with some reservation in each case. The Constitution of the United States goes somewhat farther in the separation of powers than this Constitution, because it not only vests them in distinct organs, but contains certain specific limitations, such as the prohibition on Congress and the State legislatures to pass any bill of attainder or ex post facto law, and the prohibition on the State legislatures to pass laws impairing the obligation of contracts. (Art. I., secs. 9, 10.) On the other hand, the British North America Act does not go nearly as far; it does not expressly mention the “judicial power,” and it does not establish a federal judiciary as a co-ordinate department, but merely empowers the Dominion Parliament to establish Courts. See Lefroy, Legislative Power in Canada, p. lvi. Accordingly the tendency of Canadian decisions seems to be that legislation on a subject within the competence of the Dominion Parliament cannot be held to be invalid on the ground that it invades judicial functions. (Id., pp. 124, 279).

This Constitution vests the legislative, executive and judicial powers respectively in distinct organs; and, though no specific definition of these powers is attempted, it is conceived that the distinction is peremptory, and that any clear invasion of judicial functions by the executive or by the legislature, or any allotment to the judiciary of executive or legislative functions, would be equally unconstitutional. Thus it has been held in the United States that “neither the legislative nor the executive branches of the government can constitutionally assign to the judiciary any duties but such as are properly judicial, and to be performed in a judicial manner. Nor can the executive or legislative departments review or sit as a court of errors on the judicial acts or opinions of the courts of the United States.” (Baker's Annot. Const. of the U.S., p. 121.) “Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to” [i.e., cases where the exercise of judicial functions by the legislature is warranted by parliamentary usage, and incidental, necessary, or proper to the exercise of legislative authority].—Cooley, Constit. Lim., p. 106.

EXECUTIVE ENCROACHMENTS.—The distinction between judicial and executive functions is not always easy to draw. “Doubtless the non-coercive part of executive business has no affinity with judicial business. … The same may be said, for the most part, of such coercive work of the executive as consists in carrying out decisions of judges; e.g., the imprisonment or execution of a convict. But there are other indispensable kinds of coercive interference which have to be performed before or apart from any decisions arrived at by the judicial organ; and in this region the distinction between executive and judicial functions is liable to be evanescent or ambiguous, since executive officials have to ‘interpret the law’ in the first instance, and they ought to interpret it with as much judicial impartiality as possible.” (Sidgwick, Elements of Politics, p. 358). There may sometimes be a difficulty in deciding whether a particular


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act is ministerial or judicial. “Perhaps we may say that in such cases, where the official has a discretionary power to act or not to act, according to considerations of expediency, the function is properly regarded as executive.” (Id., p. 359.) There are, however, some undoubtedly judicial powers into the exercise of which considerations of expediency may enter; for instance, the power to determine the punishment to be awarded to a convicted criminal.

LEGISLATIVE ENCROACHMENTS.—Nor is there a hard and fast line between judicial and legislative acts. A law which is retrospective, or which declares or modifies existing rights, may often have the effect of a judicial decision. But although the application of the principle to particular facts may sometimes be difficult, the principle itself is clear. “It is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions.” (Cooley, Const. Limitations, p. 91.) “The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative.” (Newland v. Marsh, 19 Illinois, 383; Cooley, Const. Lim., p. 91.) “That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced.” (Ervine's Appeal, 16 Penn. St. 266; Cooley, Const. Lim., p. 91.) “It is the province of judicial power to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles; because such statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights.”—Merrill v. Sherburne, 1 N. Hamp. 203; cited Cooley, Const. Lim., p. 92.

Great care must, however, be taken in applying American decisions as to the validity or invalidity of declaratory or retrospective legislation. Those decisions are based, not only upon the invasion of judicial power, but also upon certain specific limitations contained in the Federal and State Constitutions—such, for instance, as the prohibition against depriving any person of life, liberty, or property, without due process of law (Amendment V.), and the prohibition against laws impairing the obligation of contracts (Art. I., sec. x. l.). These limitations are the foundation of the rule that “vested rights must not be disturbed” (Cooley, Const. Lim., p. 357.) The length to which these principles are carried in the United States is forcibly stated by Lefroy, Legis. Power in Canada, pp. xlvi.-lx. The practical result is that retrospective or declaratory acts have usually been held void, apart altogether from the question of invasion of the judicial power, so far as they disturbed vested rights. For the definition and extent of this principle, see Cooley, Const. Lim., Ch. XI., on “The Protection to Property by ‘The Law of the Land.’ ” Under this Constitution, however, the principle would seem to have no application : for, although the protection to every man's life, liberty, or property, except as forfeited by the judgment of his peers, or the law of the land, is guaranteed by section 39 of Magna Charta, no constitutional limitation is thereby imposed on the plenary power of a colonial legislature. The propriety of any interference with these rights is a matter of legislative policy and morality, not of constitutional law. It is conceived that the following proposition stated by Lefroy (Legis. Power in Canada, p. 279) is applicable:—

“When once an Act is passed by the Dominion Parliament, or by a provincial legislature, in respect to any matter over which it has jurisdiction to legislate, it is not


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competent for any Court to pronounce the Act invalid because it may affect injuriously private rights, any more than it would be competent for the Courts in England, for the like reason, to refuse to give effect to a like Act of the Parliament of the United Kingdom. If the subject be within the legislative jurisdiction of the Parliament, or of the Provincial Legislatures, respectively, and the terms of the Act be explicit, so long as it remains in force, effect must be given to it in all Courts of the Dominion, however private rights may be affected.”

Apart, however, from questions of vested rights, there remains the principle that “to declare what the law is, or has been, is a judicial power; to declare what the law shall be is legislative.” (Cooley, Const. Lim., p. 94.) It cannot be doubted that any attempt by the Parliament, under cover of a declaratory law or otherwise, to set aside or reverse the judgment of a court of federal jurisdiction, would be void as an invasion of the judicial power.

But what is the application of this principle to a case where the Courts have interpreted the law in one way, and the legislature afterwards, by a declaratory enactment, has laid down a different interpretation? In such a case, the Court, in the exercise of its function as interpreter, has declared what it believes to be the law; and the legislature has in effect declared the judicial interpretation to be unfounded and unwarrantable. Under these circumstances Cooley, Const. Lim., p. 94, offers the following test of the constitutionality of the law :—

“The decision of this question must depend, perhaps, upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.”

It is submitted that the true test is indicated in the latter part of the above quotation; but that there is no need to refer to anything so vague as the “purpose” or “design” of the legislature. The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given. A declaratory law must always be in a sense retrospective, and will not be unconstitutional because it alters existing rights; but it will be unconstitutional, and therefore inoperative, so far as it purports to apply to the parties or the subject-matter of particular suits in which judgment has been given. That is to say, the legislature may overrule a decision, though it may not reverse it; it may declare the rule of law to be different from what the courts have adjudged it to be, and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned. In other words, the sound rule of legislation, that the fruits of victory ought not to be snatched from a successful litigant, is elevated into a constitutional requirement; but the general question of retrospective legislation is left to the discretion of the legislature.

POLITICAL QUESTIONS.—On the other hand, the courts cannot be clothed with legislative or executive powers, or decide questions which in their nature are not judicial, but political. Thus it has been held in the United States that the question whether the constitution of a State has been properly ratified is a political question, and is not cognizable by the federal courts. (Luther v. Borden, 7 How. l.) On the same grounds the courts of the United States have refused to interfere with the exercise of political discretion by the executive department. For instance, when a bill was brought


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by the State of Georgia against the Secretary of War of the United States to restrain him from carrying into execution certain Acts of Congress, on the ground that their execution would overthrow and destroy the corporate existence of the State, the Supreme Court refused to take cognizance of the matter, as it called for the judgment of the court on political questions which did not involve personal or property rights. (Georgia v. Stanton, 6 Wall. 50.) Again, in Mississippi v. Johnson, 4 Wall. 500, the Supreme Court refused to entertain a bill brought to restrain the President from carrying into execution a law alleged to be unconstitutional. “It can hardly be contended that Congress [sic; but query, “the Court”] can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished in principle from the right to such interposition against the execution of such law by the President? The Congress is the legislative department of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.”

It has also been held in the United States that the political department has exclusive authority to recognize, or not to recognize, a new Government in a foreign country; and therefore that this is not a matter for judicial cognizance; Kennett v. Chambers, 14 How. 38.

The distinction between the judicial and political powers has received recognition by English Courts. Thus it has been decided that political treaties between a foreign State and a subject of the Crown acting as an independent State under powers granted by Charter are not subject to municipal jurisdiction, and a bill founded on such treaties was dismissed. (Nabob of Carnatica v. East India Company, 1 Ves. Jun. 375–393, 2 ib. 56–60.)

LEGISLATION INCIDENTAL TO JUDICIAL POWER.—Sec. 51, subs. xxxix., gives the Parliament power to make laws with respect to “matters incidental to the execution of any power vested by this Constitution in .. the Federal Judicature.” Under this power the Parliament can legislate with respect to the practice and procedure of the Courts, the conduct of appeals, the admission and status of legal practitioners in the courts of federal jurisdiction, and so forth.

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