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Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here.

If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term.

The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote: _National Geographic Magazine_ for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong.

In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.]

An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words:

  The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbons _v._ Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies.

Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist.

The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1.]

When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts.

So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon _v._ Cochran, Bee's Reports, 209.]

In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States.

But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain _v._ Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the Executive should intervene and permit it.

The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States?

This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so. Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States _v._ Nash _alias_ Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department.

On the other hand, the peculiar provision of the Constitution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172° to that of 193° west longitude. Great Britain contended for the three-mile limit. Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska.

The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause:

  In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: _In re_ Cooper, 143 United States Reports, 472, 503.]

In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration. The arbitration took place and the award supported the British contention. Congress passed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were entitled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before:

  This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the United States in the waters of Behring Sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "They are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with Congress, not with the judiciary." The Cherokee Tobacco, 11 Wall., 616-621. But in the present case there is no pending question left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. ... The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[Footnote: The La Ninfa, 75 Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be noticed that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly.

The courts before the Revolution, and in some States for half a century after it, served as a kind of political mouthpiece. The institution of the grand jury[Footnote: See Chap. XVII.] afforded the means. Those composing it are personally selected by the sheriff from the principal men in the county. It is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. Frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[Footnote: "Life and Works of John Adams," II, 169.] To this the grand jury were not backward in responding with compliments and perhaps presentments.

In Massachusetts they went even further in 1774. The House of Representatives of the Provincial Assembly impeached the Chief Justice for accepting a salary from the Crown instead of relying on legislative grants, as had been the practice. The Council before which the articles were exhibited declined to entertain them. The people, however, felt that the House was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. They refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. No business was done in court until the following year, when, after the battle of Lexington, new judges were appointed by the Council.[Footnote: "Life and Works of John Adams," II, 332; X, 240; "Principles and Acts of the Revolution," 100.]

Sometimes the laws of the State were criticised in this way by judge and jury.

In December, 1788, a grand jury in South Carolina made this presentment:

  We present as a grievance of the greatest magnitude the many late interferences of the legislature of the State in private contracts between debtor and creditor. We should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[Footnote: "American Museum," VII, Appendix II, 10. _Cf. ibid._, 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History of the People of the United States," II, 229.] or acts of Congress were formerly attacked. In 1819, the action of the House of Representatives as to the introduction of slavery in Missouri was the subject of a warm protest from a grand jury in that territory, which closed thus:

  They hope those restrictions will never more be attempted; and, if they should, they hope by the assistance of the genius of '76 and the interposition of Divine Providence to find means to protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently presented as grievances in the South during the years preceding the nullification movement in South Carolina.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of the American Historical Association for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance the suspension of Commodore Porter from duty for six months under sentence of a naval court martial, approved by the Secretary of the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a grand jury in Tennessee presented a "protest against the bold and daring usurpations of power by the present Executive of the United States" (John Quincy Adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of Blount County."[Footnote: Niles' Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to a grand jury with a long statement of the justice of the Revolution, its military successes, and the duties of patriotism. The court thereupon ordered "That the political part of the Chief Justice's charge" be forthwith printed.[Footnote: Principles and Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the Constitution of the United States. Jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the United States a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for Governor of Massachusetts, a Federalist newspaper reported approvingly a charge of Chief Justice Dana of that State. He had been an ardent politician before going on the bench and had declined a nomination as minister to France during the preceding year. "The learned judge," said the Boston _Centinel_, "in a forcible manner proved the existence of a French faction in the bosom of our country and exposed the French system among us from the quintumvirate of Paris to the Vice-President and minority of Congress as apostles of atheism and anarchy, bloodshed and plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin, "Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States made several charges in Maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the House of Representatives as a ground of his impeachment. The article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and Constitution." He had, indeed, used this language:

  You know, gentlemen, that our State and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. The change of the State constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. I can only lament that the main pillar of our State constitution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state.

All this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of Guilty on the article of impeachment founded upon it to secure a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of Pennsylvania was charging a Pennsylvania grand jury that the Jeffersonians had assumed a name that did not belong to them. "Such men," he said, "disgrace the name of Republicans by exclusively assuming it. In their sheep's clothing they are ravening wolves."[Footnote: Wharton's State Trials, 47, note.] For this, among other things, he was very properly impeached and removed in 1803, after the Republicans came into power in that State.[Footnote: McMaster, "History of the People of the United States," III, 154.]

It is difficult for the American of the twentieth century to conceive how honorable men could so have abused official position.[Footnote: Wharton's State Trials, 376. Justice Washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until 1817, when party feeling had moderated, not to give out copies of any charges for publication. Niles' Register, XIII, 169.] The cause lies in the extreme rancor which then embittered politics and debased society. Federalists and Republicans were hardly on speaking terms. Many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. Judge Addison's charge brought out an open letter to him in a Pittsburgh newspaper, signed by a Republican who was on the Supreme bench of the State, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[Footnote: Wharton's State Trials, 47, note.] On the other hand, at a political banquet of the Boston Federalists, at about the same time, their approval of Judge Dana's charges to grand juries was manifested by this toast: "The Honorable Francis Dana, Chief Justice of the learned Associate Judges of our Supreme Judicial Court. While the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[Footnote: Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers. Heads of Departments of the State or the United States are subject to this power.[Footnote: Noble _v._ Union River Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169 U. S. Reports, 466.] So in the Federal Courts are Governors of States acting under a law repugnant to the Constitution of the United States.[Footnote: Pennoyer _v._ McConnaughy, 140 U. S. Reports, 1.] No such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[Footnote: Georgia _v._ Stanton, 6 Wallace's Reports, 50.] nor under any circumstances against the President of the United States.[Footnote: Mississippi _v._ Johnson, 4 Wallace's Reports, 475.] As to whether it can in some cases be granted by a State court against the Governor there is a conflict of authority.

The development of party government in the United States has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. Statutes of this nature relating to the form and heading of ballots for use at popular elections are common. If conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. The legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[Footnote: State _v._ Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When title to a political office is contested, the courts, unless there is some constitutional provision to the contrary, may be appealed to for a decision. This is true even in respect to the office of Governor.[Footnote: Boyd _v._ Thayer, 143 U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports, 548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It is a remedy which has been, though in rare instances, abused for party purposes.[Footnote: Such a case was the issue by a District Judge of the United States in 1872 of an injunction-order under which the Marshal took possession of the Louisiana State-house, and excluded those claiming to be the legislature of the State. Gibson, "A Political Crime," 347 _et seq._; Senate Report, 457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Constitutions of several States, to ask the judges of the Supreme Court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is Governor, if the title to the office is claimed by two. This was the case in Florida in 1869. The House of Representatives had commenced proceedings of impeachment against the Governor. It was on the first day of a special session of the Assembly. There could be no such session unless a quorum was present in each house. There were but twelve Senators in attendance. The Lieutenant-Governor regarded the proceedings as regular, and assumed to exercise the office of Governor pending the trial. The Governor claimed that twelve Senators were not a quorum, and that the proceedings were void. On these points he requested the opinion of the Justices of the Supreme Court, and they gave one supporting his contentions.[Footnote: 12 Florida Reports, 653.] A few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 518, 520.]

In the early days of the United States, under the present Constitution, the Chief Justices of the Supreme Court of the United States at times filled also a political office, and so were invested at the same time with political and judicial functions. John Jay, the first Chief Justice, while holding that office, was made our Envoy Extraordinary to Great Britain, and spent a year abroad in that capacity. His acceptance of the position, however, occasioned general and unfavorable comment. John Marshall was both Chief Justice and Secretary of State for five weeks, during which he held one term of the Supreme Court. Oliver Ellsworth was both Chief Justice and minister to France at the same time, and for a period of over a year, during which he held one term of court.

Nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office.

When the result of the election of the President and Vice-President of the United States was contested in 1877, Congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the Supreme Court, to decide upon the returns. Four of the justices were especially selected by the act passed for this purpose, two of them being Republicans and two Democrats, and they were directed to choose the fifth.[Footnote: 19 United States Statutes at Large, 228.] They agreed on Justice Bradley, a Republican. The Congressional members were equally divided politically. The result proved to be that on every important question in controversy every Republican voted for the view favorable to the Republican candidates and every Democrat voted for the other. The country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial participation in the decision of political issues.[Footnote: See Wilson, "Division and Reunion," 286; S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy, "Some Account of the Work of Stephen J. Field," 440.]

Justices of the Supreme Court have since sat on international tribunals of arbitration, but this is, or should be, a strictly judicial proceeding.

In the State Constitutions, the judges of the highest courts are now often expressly forbidden to accept other office,[Footnote: See Chap XXII.] but in the absence of such a prohibition it would be considered as unbecoming. Formerly and during the first third of the nineteenth century this was in many States not so. Some were then judges because they held legislative office and as an incident of it. Others did not hesitate to accept political positions. Of the six Federalist electors chosen in New Hampshire at the presidential election of 1800, three were judges of her Supreme Court.[Footnote: Wharton's State Trials, 47.]

Judges have frequently taken part in constitutional conventions of their States. In Virginia, Chief Justice Marshall was a member of that of 1829, and Judge Underwood of the District Court presided over that of 1867. Chancellor Kent and Chief Justice Spencer were members of that of 1821 in New York.

It may well be doubted if the advantages to be gained by their counsel in such a position are not outweighed by the evil of exposing it to criticism as dictated by selfish considerations. A member of the New York convention thus alluded upon the floor to the measures supported by the Chief Justice and Chancellor:

  He regretted that such an opinion and plan had been proposed by the Chief Justice. It must have arisen from the politics of the Supreme Court. The judges of that court had been occupied so much in politics that they had been compelled to press upon the public a system that had nothing else to recommend it than such a relief to themselves from the burthen of official duties as would leave them to the free exercise of their electioneering qualifications. But for this, the Chief Justice might have shown a Holt, or a Mansfield. The elevated character of the Chancellor had been often asserted and alluded to. He meant no disrespect to that honorable gentleman. He respected him as highly as any man when he confined himself to the discharge of the official duties of his office; but when he stepped beyond that line; when he became a politician, instead of being his fancied oak, which, planted deeply in our soil, extended its branches from Maine to Mexico, he rather resembled the Bohon Upas of Java, that destroyed whatever sought for shelter or protection in its shade.[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 615.]

The pardoning power is essentially of a political nature. Judicial officers are to do justice. Mercy is an act of policy or grace. A pardon after conviction presupposes guilt. Nevertheless, in a few States this royal prerogative of pardoning has been committed to a board of officers, headed by the Governor, of which some of the judiciary are members. There is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century.

When our position as a neutral power, in 1793, involved us in serious questions affecting the rights of Great Britain and France, Washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the Justices of the Supreme Court of the United States be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the President."[Footnote: Jefferson's Writings, Library Ed., I, 370.] Nothing of this nature would now be dreamed of, under any conditions.