Page:Borden v. State ex rel. Robinson.pdf/37

Rh seems to me to be assuming a right to avoid a consequence, and even if placed upon this ground there are consequences on the other side which might be not less weighty and worthy of consideration. If it be true that a judge is entitled to exercise a jurisdiction with impunity, because he himself has decided that he possessed it, then indeed to my mind all distinction of jurisdiction is broken down, and the only rule in future must be the will of the judge, or that he has jurisdiction because he has exercised it. I must not be understood as assuming that the opinion goes to this extent; but then if it is to be indulged in one single instance, the principle is admitted and it may with equal propriety be applied to any and every case, even the most extreme or absurd; for although such extreme case might tend to fix upon the judge a wanton abuse of power, it never could affect the principle itself upon which the judge acted.

To the contrary of this, I hold that ours are courts of defined, constitutional jurisdiction with regard to the subjects over which such jurisdiction is to be exercised, and so far as the subject matter is concerned, they must at their peril take notice that they do not exceed it or usurp that which properly belongs to some other tribunal. But so far as regards the manner of presenting the subject matter to the consideration of the court, no matter how imperfect or illogical the pleadings may be, if the cause itself be such as the court, by any possible form of presentation, could take jurisdiction of it. The court, in passing upon the facts necessary to present such subject matter properly before it so as to fix a legal liability upon the defendant, would have a right to decide, and whether such decision should be right or wrong, the proceeding, so far as that branch of the inquiry extends, would not be absolutely void but might be erroneous, and if the ascertainment of that fact alone was sufficient to empower the court to proceed to judgment, then it would be true that the court and all persons acting under its authority, would be protected by its decision.

To make myself fully understood I will suppose a case, an extreme one it is true, but not the less appropriate for that reason.