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Full text of "Political Science Of The State"

DEPARTMENTS  OF  GOVERNMENT IN A STATE.        333
mons might not in one session abolish the habeas corpus,
just as they passed it, would confirm that most important
instrument, until the people could have a breathing spell.
Meanwhile the old law would stand, and a case that was be-
fore court would be settled on the principle of the old statute.
It is the same under a written constitution such as ours, only
that the law would" be pronounced invalid because it con-
flicted with the express words of the constitution.
Suppose, on the other hand, a very obnoxious law to be
passed in a constitutional country, which the judges are
obliged to regard as strictly in accordance with the ground-
law. They are here sworn defenders of law, even/of law
which opposes the sound sense of a community. Only the
power that made can alter ; and the censures of the commu-
nity on their representatives will be followed by a change of
legislation. Thus a judiciary, while it is the protection of
right under law, has not any proper law-making power; it
is the instrument for keeping up the order of things ; change
must come from another quarter. Again, unless in constitu-
tional States there is a power able to watch over the constitu-
^tion, and prevent invasions of it, especially by the executive,
it must become a sham, of force against the people but un-
able to put a check on the arbitrary acts of the public officers.
The highest courts can exercise this guardianship of the con-
stitution better than any other board of control that can be
devised. The questions that concern constitutional law come
before the judges of the highest courts in the same unpre-
tending way in which every other question comes, on appeal
for final decision. A person is required by an officer of the
government to do a certain act, and refuses compliance on
the ground that it is unconstitutional. The same process is
used which would be used if the officer demanded something
simply illegal. If the decision of an inferior court is sus-
tained, this is an end of the law. The legislature, if it en-
deavored by new measures of its own to uphold the law,
could dp this only by the help of the executive. If the offi-
cers of the executive after such a decision endeavor to enforce