Page:Harvard Law Review Volume 1.djvu/241

 sense in which they are commonly understood. These three branches, in the first place, are called coördinate, and work each in a separate and defined province; and yet, as must of necessity be the case in human affairs, the lines of demarcation are not always clear, and unless confusion is to be endless, a power must exist somewhere to determine the limits of the separate provinces, and to decide controversies in regard to them. The power to do this has been confided to the courts in accordance with the principles of the common law, if not by the express provisions of the Constitution. The judicial branch of the government, therefore, is the final arbiter and ultimate authority on all matters touching the limits of the powers granted by that instrument. It possesses no direct initiative, but it is the sole and final judge of its own rights as well as of those of the Executive and the Legislature, and in this sense, while greatly inferior in force, it is superior in authority to the other two branches of the government.An extended discussion of the effect which a decision by the Supreme Court on a point of constitutional law has upon the other branches of the government would not be appropriate in this article; but as I have to some extent assumed the correctness of one side of a controversy upon the point, a few words of explanation in a note may not be out of place. A decision by the highest court of appeal has two distinct effects. In the first place, it is absolutely and finally binding on the parties to the suits and all persons claiming under them, and it is binding on no one else. In the second place, it establishes a precedent which, under ordinary circumstances, is morally certain to be followed whenever the same question is again presented to the court; and it is in consequence of this second effect of a decision that the court has virtually power to settle the law. Now, in the United States, all officers of the government are subject to the ordinary rules of the common law (with a few exceptions, in some States, for example, of soldiers called out to suppress a riot, etc.), and although the courts have no general power to command the performance of official duties, yet a public officer can be sued or prosecuted for violations of the law like any other citizen, and his official position or the orders of his superior are no defence to him. If he has done any act in excess of his authority, he is liable for it precisely as any one else who had done the same act would be; and it is for the ordinary courts of common law to decide whether the act in question is beyond his authority or not. If, therefore, the court has decided that a certain statute is unconstitutional, every one knows that he may treat that statute as invalid. He knows that the court will give him redress against any person, whether public officer or private citizen, who injures him under color of its provisions; and he knows that he may resist any officer or other person who attempts to enforce it, and that he will be held harmless for so doing. In many of the continental countries of Europe a public officer is not amenable to the ordinary process of law, either by virtue of a provision that he cannot be sued or prosecuted in the ordinary courts, on account of any act done under color of his office, without the consent of a

Now let us consider for a moment the nature of the body in which this vast power is vested. The Executive and Legislature are elected by the people, or by some rough approximation to a