The Spirit of American Government Part 3

Moreover, the authority of the courts is "the most vital part of our government, the part on which the whole system hinges."[52] This is true for the reason that the Federal judiciary is not only the most important of our const.i.tutional checks on the people, but is also the means of preserving and enforcing all the other checks. To enable the Federal judges to exercise these important and far-reaching powers, it was necessary to make them independent by giving them a life tenure. This provision was in perfect harmony with the general plan and purpose of the Const.i.tution, a doc.u.ment framed, as we have seen, with a view to placing effectual checks on the power of the majority. As a means to the end which the framers of the Const.i.tution had in view, the independence of the judiciary was an admirable arrangement.

Hamilton says: "Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those const.i.tutions which have established _good behavior_ as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government.

The experience of Great Britain affords an ill.u.s.trious comment on the excellence of the inst.i.tution."[53]

This is quoted with approval by Story in his Commentaries on the Const.i.tution and this same line of argument has been followed by legal and political writers generally. But with all due respect for the eminent authorities who have placed so much stress on the political experience of other countries, we may venture to ask if the parallel which they have a.s.sumed really exists. Is the use made of this argument from a.n.a.logy warranted by the facts in the case? Are we sure that the political experience of England proves the wisdom of an independent judiciary? This can best be answered by referring to the circ.u.mstances which gave rise to the doctrine that the judges should be independent.

In England formerly the Crown appointed the judges and could remove them. This power of appointment and removal placed the courts under the control of the King and made it possible for him to use them as a means of oppressing the people. A striking example of the way in which this power could be abused was seen in the career of the notorious Jeffreys, the pliant judicial tool of the cruel and tyrannical James II. To guard against a repet.i.tion of this experience it was urged that the judges be made independent of the King.

This was done in 1701 by the Act of Settlement which provided that judges should be removed only on an address from Parliament to the Crown. This deprived the King of the power to remove judges on his own initiative and virtually gave it to Parliament. The object of this provision was to place a check in the interest of the people upon the arbitrary power of the Crown. It made the judges independent of the King, but at the same time established their responsibility to Parliament by giving the latter the right to demand their removal.[54]

The statement so often made and so generally believed that the American judicial system was modeled after that of Great Britain will not bear investigation. English judges are not and never have been independent in the sense in which that word is used with reference to the Federal judiciary of the United States. In making the judges independent of the King, Parliament had no intention of leaving them free to exercise irresponsible powers. To have made them really independent would have been to create a new political power of essentially the same character and no less dangerous than the power of the King which they were seeking to circ.u.mscribe.

"In England," says Jefferson, "where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared, and has flowed, it was a great point gained, by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction, and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself."[55]

There is, as a matter of fact, nothing in the political experience of Great Britain to support the belief in an independent judiciary. The judges there do not const.i.tute a co-ordinate branch of the government and can not enforce their opinion in opposition to that of Parliament.

Instead of being independent, they are strictly dependent upon Parliament whose supreme power and authority they are compelled to respect.

This being the case, it is hardly necessary to observe that the courts in England do not exercise legislative functions. The power to decide upon the wisdom or expediency of legislation is vested exclusively in Parliament. The courts can not disregard a statute on the ground that it is in conflict with the Const.i.tution, but must enforce whatever Parliament declares to be the law. As the judiciary under the English system has no voice in the general policy of the state, the tenure of judges during good behavior carries with it no power to thwart the popular will.

The provision in the Const.i.tution of the United States for the life tenure of a non-elective judiciary serves, however, an altogether different purpose. It was designed as a check, not upon an irresponsible executive as was the case in England, but upon the people themselves.

Its aim was not to increase, but to diminish popular control over the government. Hence, though professing to follow the English model, the framers of the Const.i.tution as a matter of fact rejected it. They not only gave the Federal judges a life tenure, but made that tenure unqualified and absolute, the power which Parliament had to demand the removal of judges being carefully witheld from the American Congress.

This reversed the relation which existed between the legislative and judicial branches of government under the English system and raised the judiciary from a dependent and subordinate position to one that made it in many respects supreme. The most important attribute of sovereignty, that of interpreting the Const.i.tution for the purposes of law-making, which belonged to Parliament as a matter of course, was withheld from Congress and conferred upon the Federal judiciary. Not only, then, did the framers of the Const.i.tution depart from the English model in making the Federal judiciary independent of Congress, but they went much farther than this and conferred upon the body whose independence and irresponsibility were thus secured, powers which under the English system were regarded as the exclusive prerogative of a responsible Parliament. This made our Supreme judges, though indirectly appointed, holding office for life and therefore independent of the people, the final interpreters of the Const.i.tution, with power to enforce their interpretation by declaring legislation null and void. A more powerful check upon democratic innovation it would be hard to devise.

The main reason for making the Federal judges independent and politically irresponsible has not been generally recognized. Thus, in a recent work Professor Channing, while expressing some disapproval of this feature of our system, fails to offer a satisfactory explanation of its origin. "Perhaps nothing in the Const.i.tution of the United States is more extraordinary," he tells us, "than the failure of that instrument to provide any means for getting rid of the judges of the Federal courts except by the process of impeachment. In England, in Ma.s.sachusetts and in Pennsylvania, judges could be removed by the executive upon address by both branches of the legislative body.[56] In none of these cases was it necessary to allege or to prove any criminal act on the part of the judge. In colonial days the tenure of the judicial office had been of the weakest. In the royal provinces, the judges had been appointed by the Crown and had been removable at pleasure. In the charter colonies, the judges had been appointed by the legislature, and their tenure of office was generally for one year. The precariousness of the judicial office in the royal provinces had more than once led to attempts on the part of the colonists to secure greater permanency, because a permanent judiciary would afford them protection against the royal authorities.

All attempts of this kind, however, had been defeated by the negative voice of the government of England. Possibly the permanence of judicial tenure which is found in the Const.i.tution of the United States may be regarded in some sort as the result of this pre-revolutionary contest."[57]

As a matter of fact, however, there is nothing extraordinary or difficult to explain in this permanency of judicial tenure which the Const.i.tution established. It was not in the charter colonies where annual legislative appointment of judges was the rule, but in the royal provinces that efforts were made by the people to secure greater permanency of judicial tenure. They wished to give the judges more independence in the latter, because it would be the means of placing a check upon irresponsible authority, but were satisfied with a short term of office for judges in the colonies where they were elected and controlled by the legislature. Any explanation of the permanent tenure of our Federal judges "as the result of this pre-revolutionary contest"

is insufficient. It was clearly a device consciously adopted by the framers of the Const.i.tution, not for the purpose of limiting irresponsible authority, but for the purpose of setting up an authority that would be in large measure politically irresponsible.

Conservative writers while giving unstinted praise to this feature of the Const.i.tution have not explained its real significance. They have a.s.sumed, and expect us to take it for granted, that the Federal judiciary was designed as a means of making the will of the people supreme; that its independence and exalted prerogatives were necessary to enable it to protect the people against usurpation and oppression at the hands of the legislative branch of the government.

Hamilton tells us, "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body....

"The complete independence of the courts of justice is peculiarly essential in a limited const.i.tution. By a limited const.i.tution, I understand one which contains certain specified exceptions to the legislative authority.... Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Const.i.tution void....[58]

"Some perplexity respecting the rights of the courts to p.r.o.nounce legislative acts void, because contrary to the Const.i.tution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void....

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Const.i.tution, can be valid. To deny this would be to affirm that the deputy is greater than his princ.i.p.al; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

"If it be said that the legislative body are themselves the const.i.tutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this can not be the natural presumption, where it is not to be collected from any particular provisions in the Const.i.tution. It is not otherwise to be supposed that the Const.i.tution could intend to enable the representatives of the people to subst.i.tute their _will_ to that of their const.i.tuents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits a.s.signed to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A const.i.tution is, in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Const.i.tution ought to be preferred to the statute, the intention of the people to the intention of their agents....

"This independence of the judges is equally requisite to guard the Const.i.tution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."[59]

This argument for an independent judiciary, which has been adopted by all writers who have attempted to defend the system, may be summarized as follows:

The Const.i.tution being the solemn and deliberate expression of the will of the people, is the supreme law of the land. As such it enumerates the powers of the several branches of the government and sets limits to their authority. Any act, therefore, on the part of the agents or representatives of the people, which exceeds the authority thus delegated, is in violation of the fundamental law and can not bind those whom they profess to represent.

These checks upon the agents and representatives of the people can not be enforced, however, if each branch of the government is to be permitted to determine for itself what powers the Const.i.tution has conferred upon it. Under such a system Congress would overstep the limits which have been placed upon its authority and subst.i.tute its own will for the will of the people. To prevent this the framers of the Const.i.tution placed the courts, in their scheme of government, between the people and the legislature and gave them power to determine and enforce the const.i.tutional limitations on the authority of Congress.

This put the Const.i.tution and the rights and liberties of the people under the protection of their natural guardian, the Federal judiciary, and thereby secured the people against the danger of legislative tyranny.

We must not forget the circ.u.mstances under which Hamilton wrote this defence of the Federal judiciary. Although the Const.i.tutional Convention had spared no pains to prevent the publication of its proceedings, the feeling was more or less general that the whole movement was a conspiracy against popular government.

"The charge of a conspiracy against the liberties of the people," said Hamilton, "which has been indiscriminately brought against the advocates of the plan [the Const.i.tution], has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye have been of a nature to demand the reprobation of all honest men."[60]

The evidence now accessible to students of the American Const.i.tution proves that the charges of "concealments and misrepresentations" made with this show of righteous indignation against the opponents of the Const.i.tution might have justly been made against Hamilton himself. But knowing that the views expressed in the Federal Convention were not public property, he could safely give to the press this "refutation of the calumny."

The publication of the debates on the Const.i.tution at that time would have shown that the apprehensions of the people were not entirely without justification. The advocates of the new form of government did not propose to defeat their own plans by declaring their real purpose--by explaining the Const.i.tution to the people as they themselves understood it. For it was not to be supposed that the people would permit the adoption of a form of government the avowed object of which was to limit their power. Therefore the conservatives who framed the Const.i.tution and urged its ratification posed as the friends of democracy. Professing to act in the name of, and as the representatives of the people, they urged them to accept the Const.i.tution as a means of restraining their agents and representatives and thereby making their own will supreme. It was not the aim of these articles, written, as they were, to influence public opinion, to explain the real purpose of the Const.i.tution, but rather to disguise its true character.

In this species of political sophistry Hamilton was a master. It is, to say the least, strange that the misstatement of historical facts, false a.n.a.logies and juggling of popular catch-words which const.i.tute his defence of the Federal judiciary should have been so often referred to as an example of faultless logic and a complete vindication of the system. Hamilton's interpretation of the Const.i.tution as contained in these articles was merely for popular consumption, and not a frank and unequivocal expression of what he himself really believed. He was an uncompromising opponent of democracy and considered the English government of that day, with its hereditary monarchy and aristocracy, the best form of government ever devised.[61]

He favored therefore as near an approach to the English system as the circ.u.mstances of the case would permit. According to the plan which he submitted to the Convention the executive branch of the government was to be placed beyond the reach of public opinion by a method of appointment designed to guard against the choice of a popular favorite and by life tenure. Not only did he wish to make the President independent of the people, but he proposed to give him an absolute veto on all acts of Congress. Moreover, the President was to appoint the governors of the various states, and these, like the royal governors before the Revolution, were to have an absolute veto on the acts of the state legislatures.[62] This would have made the President a monarch in all but name, and though independent of the people, have given him power to thwart legislation which no majority in Congress, however great, could override.

But this did not go far enough in the direction of providing checks on popular legislation to suit Hamilton. The members of the upper house of Congress were, like the President, to be indirectly elected and to hold office for life. And finally over and above Congress was to be placed a Supreme Court whose members, by their mode of appointment and life tenure, were to be independent of the people. This body, which was to be the final interpreter of the Const.i.tution, was designed as an additional safeguard against democratic legislation. The lower house of Congress was the only branch of the government in which any provision was made, under Hamilton's plan, for the representation of public opinion. Through the House of Representatives the people were to have an opportunity to propose legislation, but no power to enact it, or to control the general policy of the government.

The refusal of the Convention to endorse the scheme of government proposed by Hamilton must not be understood as implying lack of sympathy with the political views which it embodied. With his main purpose, that of effectually curbing the power of the majority, nearly all the members of that body were in full accord. They were, however, shrewd experienced men of affairs who understood the temper of the people and knew that their plan of political reorganization could be carried through only by disguising its reactionary character and representing it as a democratic movement. To have submitted the Const.i.tution in the form in which it was proposed by Hamilton would have defeated their purpose.

It was too obviously undemocratic, inasmuch as it provided for a strong centralized government only one branch of which was to be elected by the people, while the other three were to be placed beyond the reach of public opinion through indirect election and life tenure. The Const.i.tution as framed and submitted was more democratic in appearance, though it really contained all that was essential in Hamilton's plan.

Life tenure for the President and Senate was discarded, it is true, but indirect election was expected to ensure their independence. The absolute veto on Federal and state legislation which Hamilton proposed to give to a permanent executive was the most serious practical objection to his scheme, since it showed too clearly the purpose of the Convention to make the aristocratic element supreme not only in the general government but in the states as well. In form and appearance the Const.i.tution merely gave the President a qualified negative on the acts of Congress; but in reality the Convention went much farther than this and conferred the absolute veto on federal and state legislation contended for by Hamilton. The power was merely transferred from the President in whose hands he had proposed to place it, and given to the Supreme Court. The end which he had in view was thus attained without arousing the opposition which would have been inevitable had there been anything in the Const.i.tution to indicate that such a power was intended to be conferred.

These facts disclose the true motive for Hamilton's untiring efforts in behalf of the Const.i.tution. He desired its adoption, not because he believed that it would make the will of the people supreme, as his above quoted references to _princ.i.p.al_ and _agent_ and _master_ and _servant_ would seem to imply, but for the opposite reason that it would make the government largely independent of public opinion. As a matter of fact, Hamilton had no use whatever for a political system which a.s.sumed that the people were a _master_ or _princ.i.p.al_ and the government merely their _servant_ or _agent_. The chief merit of the Const.i.tution from his point of view was not its acceptance, but its repudiation of this principle. Had it been framed on the theory that the will of the people is the supreme law of the land, no one would have been more bitterly opposed to its adoption than Hamilton himself. That he gave it his unqualified support is the best evidence that he did not believe that it would make the will of the people supreme.

No intelligent man who carefully reads Hamilton's argument in defence of the Federal judiciary could be misled as to his real views. His dread of democracy is clearly seen in his desire to exalt the Supreme Court and subordinate Congress, the only branch of the government in which the people were directly represented. His seeming anxiety lest the legislative body should disregard the will of the people was a mere demagogic attempt to conceal his real motive. Had this been what he really feared, the obvious remedy would have been the complete responsibility of Congress to the people. In fact, this was necessarily implied in the doctrine of princ.i.p.al and agent which he professed to accept, but which found no recognition either in the const.i.tution which he himself had suggested, or in the one finally adopted. To this theory of government the system which he defended was in reality diametrically opposed. Under the guise of protecting the people against misrepresentation at the hands of Congress, it effectually limited the power of the people themselves by tying the hands of their responsible agents. It deprived the people of the power to compel the enactment of law by making the consent of the Supreme Court necessary to the enforcement of all legislation, federal and state. This was a substantial compliance with Hamilton's proposal to give an absolute veto to an independent and permanent executive. It was a matter of but little consequence whether this power was conferred on a single person, as the President, or on a body, as the Supreme Court, provided the manner of appointment and tenure of those in whose hands it was placed, were such as to ensure an independent exercise of the power thus conferred. The result would be the same in either case: the law-making power would be placed beyond the reach of popular control.

To allow the legislative body to be "the const.i.tutional judges of their own power," Hamilton tells us, would be to affirm "that the servant is above his master." Hence it is necessary, he argues, to divest Congress of all authority to determine the extent of its own powers. To accomplish this the Supreme Court was made the const.i.tutional judge of the powers of Congress and of its own powers as well. Hamilton's argument involves the a.s.sumption that, while it is dangerous to allow a frequently elected and responsible branch of the government to determine the extent of its own powers, it is at the same time eminently wise and proper to give, not only this power, but also the power to determine the authority of all other branches of government, to a permanent body whom the people neither elect nor control. His constant reference to the danger of legislative oppression was merely a mask for his hatred of popular government. He was anxious to curb the power of Congress because he feared that public opinion would too largely influence the proceedings of that body. On the other hand, he saw no danger of executive or judicial tyranny since these branches of the government were expected to be independent of public opinion. Hamilton's purpose was to limit the power of the people by subordinating that part of the government in which they were directly represented and strengthening those parts over which they had no direct control. His defence of the Const.i.tution is thus really an argument against responsible government and a defence of the principles underlying monarchy and aristocracy.

As the English judiciary is really an offshoot from the executive, the power of the court to declare legislation null and void may be regarded as merely a phase of the executive veto. No evidence of this can be found, it is true, in the const.i.tutional history of England during the eighteenth and nineteenth centuries. But if we go back to the period preceding the revolution of 1688, it seems to be clearly established that the English courts claimed, and in a few instances exercised, the power to annul acts of Parliament. As late as 1686, in the case of G.o.dden v. Hales, "the Court of King's Bench actually held that important provisions of the statute of 25 Charles II, cap. 2, were void because conflicting with the King's rightful prerogative."[63] When we remember that the courts were then under the control of the King, it is not surprising that they should have attempted to exercise this power in defence of the royal prerogative. But with the Revolution of 1688, which established the supremacy of Parliament, the last trace of the judicial negative disappeared. From that time on the right of Parliament to be the const.i.tutional judge of its own powers has not been seriously questioned. Even the veto power of the King soon became obsolete, though in theory it for a time survived.

Such was the const.i.tutional status of the English judiciary when the American colonies a.s.serted their independence. The new state const.i.tutions adopted at the outbreak of the war, as has been shown in a previous chapter, represented the more democratic thought of the period and were really revolutionary in character. They abolished the veto power of the governor and failed to abolish the judicial negative only because it did not then exist.[64] This was followed after the Revolution by a conservative reaction which was not, however, a popular movement. It received no general support or sympathy from the ma.s.ses of the people, but was planned and carried through by those whom we may describe as the ruling cla.s.s, and who were, for the most part, strongly in sympathy with English political inst.i.tutions. It was characterized by real, if not avowed, hostility to the new political ideas embodied in the Declaration of Independence and in the Revolutionary state const.i.tutions. Its aim was to reform the state governments by restoring, as far as possible, the checks on democracy which the Revolutionary movement had swept away.

The judiciary was the only branch of the state government in which the principle of life tenure had been retained, and therefore the only one which could be depended on to offer any effectual resistance to public opinion. Evidently, then, the easiest and most practicable method of accomplishing the end which the conservative cla.s.ses had in view was to enlarge the powers of the judiciary. Accordingly an effort was made at this time in several of the states to revive and develop the judicial veto. A practical argument in favor of this check was doubtless the fact that it required no formal changes in the state const.i.tutions, and, for this reason, was less likely to arouse formidable opposition than any avowed attempt to restore the system of checks.

When the Const.i.tutional Convention met in 1787 the courts in five states were beginning to claim the power to declare acts of the legislature unconst.i.tutional. In a Virginia case as early as 1782 the judges of the court of appeals expressed the opinion "that the court had power to declare any resolution or act of the legislature, or of either branch of it, to be unconst.i.tutional and void."[65] The court, however, did not exercise the power to which it laid claim. It merely declared a resolution of the House of Delegates invalid on the ground that it had been rejected by the Senate. This case is important only as showing that the court was then paving the way for the exercise of the power to annul acts of the legislature.

The case of Trevett v. Weeden, decided by the Superior Court of Judicature of Rhode Island in September, 1786, is said to be the first in which a law was declared null and void on the ground that it was unconst.i.tutional.[66] The court in this case did not expressly say that the law in question was unconst.i.tutional and therefore void, but it refused to recognize its validity. The power which the court exercised to ignore a legislative act was promptly repudiated by the law-making body, and at the expiration of their term of office a few months later, the judges responsible for this decision were replaced by others. In 1786 or 1787 a case was decided in Ma.s.sachusetts, and also one in New Jersey, in which it is claimed that the court declared a legislative act null and void.

The first reported case in which an act of a legislature was held to be contrary to a _written_ const.i.tution is that of Bayard v. Singleton, decided by the Superior Court of North Carolina in May, 1787. James Iredell, afterward a member of the North Carolina convention, held to ratify the Const.i.tution, and a judge of the United States Supreme Court, and William R. Davie, one of the framers of the Const.i.tution, were attorneys for the plaintiff, the party in whose interest the law was declared unconst.i.tutional. This decision received much adverse criticism at the time. The judges "were fiercely denounced as usurpers of power.

Spaight, afterwards governor, voiced a common notion when he declared that 'the state was subject to the three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman triumvirate and equally insufferable.'"[67]

Iredell, in a letter to Spaight written August 26, 1787, defended the decision as a means of limiting the power of the majority. "I conceive the remedy of a new election," he says, "to be of very little consequence, because this would only secure the views of a majority...."[68] Iredell expressed what was no doubt the real purpose of the judicial veto--the limitation of the power of the majority.

In eight of the thirteen states the doctrine that the judiciary could refuse to enforce laws regularly enacted by the legislative body had not even been a.s.serted by the courts themselves, much less recognized and accepted by the people generally. There is no evidence to warrant the belief that this power was anywhere claimed or exercised in response to a popular demand or that it had at this time become a firmly established or generally recognized feature of any state government.

This being the case, there is no ground for the contention that the power to annul acts of the legislature was necessarily implied in the general grant of judicial authority contained in the Const.i.tution.

Moreover, it was not expressly conferred, for the Const.i.tution as submitted and ratified contains no reference to this power.

"There is no provision in the Const.i.tution of the United States ...

which clothes the judiciary with the power to declare an act of the legislature generally null and void on account of its conceived repugnance to the Const.i.tution or on any other account."[69]

It has been claimed that in this respect our general government is even less democratic than the framers of the Const.i.tution intended. This view, however, is not borne out by the facts. The a.s.sertion of this far-reaching power by our national judiciary, though not expressly authorized by the Const.i.tution, was nevertheless in harmony with the general spirit and intention of its framers. That the members of the Const.i.tutional Convention declined to confer this power in unequivocal language does not justify the inference that they did not wish and intend that it should be exercised by the courts.