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rightfully elected to the office of governor of a State,- a ques tion which from its very nature cludes Federal jurisdiction and Federal interference. It declined to decide the question which of two rival State governments is the rightful one; 2 it declined to pass upon the constitutionality of the reconstruction acts,3 and it declined to permit a bill in equity to be filed to enjoin the President of the United States from enforcing them.* But, on the other hand, in a case which was probably concocted and collusive, it laid its hand upon Congress and the Executive, and undertook to superintend them in the mode of raising revenue a matter vital to the existence of the Government— and said to them, overruling two of its previous decisions, you shall not raise revenue in a mode which, in time of war, with our ports blockaded, might become absolutely necessarily to the National existence. A more unpatriotic decision was never pronounced in a court of justice. I solemnly protest against the doctrine that, in a matter essential to the very life of the nation, the judiciary can rightfully handcuff the Legislature of a free people.

V. International Arbitration by Judges.

Not only have politicians found it expedient to submit their differences to the decision of the judges, but civilized governments, and notably Great Britain and the United States, have found it cheaper, juster, and more humane, to submit international controversies to the decision of lawyers and judges, than to settle them by the shock of armies and the bombardment of cities. Within the memory of those who sit before me, two great controversies between Great Britain and the United States have been settled in this way, and a third is in process of settlement. In the last case the world witnessed the sublime spectacle of a tribunal composed of four judges and an umpire elected by those four, being created to settle a question of strictly sovereign right, the question of the boundary between two contiguous

Boyd v. Nebraska, 143 U. S. 135.

2 Luther v. Borden, 7 How. (U. 8.) 1.

3 Georgia v. Stanton, 6 Wall. (U. S.) 50.

4 Mississippi v. Johnson, 4 Wall. (U. S.) 475.

Pollock v. Farmers' Loan &c. Co. v. 157 U. S. 429, and 158 U. S. 601.

Sovereign States. No greater tribute was ever paid by the political to the judicial departments of those governments. The meaning is that judges, who are trained to settle controversies between private parties in accordance with law and justice, can best be trusted to settle great public questions depending upon the weighing of evidence and the application of the principles of international law.

VI. Coercion of the

Executive by the Judicial Department of the Government.

The doctrine of Judicial Supremacy necessarily and avowedly involves the proposition that the judicial department of the government has the right, not only to interpret the constitution and the laws for the other departments, but also to enforce its interpretation by its coercive process directed against the officers of such departments. In the beginning of this century Chief Justice Marshall, in the case of Marbury v. Madison,1 advanced this doctrine, holding that a Federal Circuit Court might issue its mandamus to a cabinet officer to compel him to perform an act which the President had directed him to perform, where he had afterwards recalled his direction, commanding him not to perform it. This was very much as though the President should order the Marshal of the Supreme Court to execute a process which the Supreme Court had issued, but afterwards recalled, ordering him not to execute it. President Jefferson resisted this attempt on the part of the judicial branch of the government to coerce the executive branch and to compel him to deviate from his own conceptions of law and right in the performance of his sworn duties; and the court which, had made the attempt was abolished by Congress. Afterwards, in Burr's trial, Chief Justice Marshall issued a supœna duces tecum to President Jefferson, commanding him to produce a letter written to the President by General Wilkinson. Mr. Jefferson made no return to the impudent writ, but lodged the document with the United States District Attorney, with instructions to produce such portions of it as might be disclosed without detriment to the public interests. Subsequently, in the trial of Burr for misdemeanor, Burr renewed his application and actually argued that

1 1 Cranch (U. S.), 137.

the President of the United States was in contempt ! 9:1 If Jefferson had yielded, the precedent would have been set that the judicial department of the government can send compulsory process against the President of the United States himself." The Dred-Scott decision, which was a mere political fulmination, was never executed; no mandate was ever sent down after the decision was rendered; and it was reversed amid the thunder of cannon. I have already pointed out how Jackson refused to assist the Supreme Court of the United States in preventing the State of Georgia from extending its municipal laws over the Indian country within that State, and how the court failed in its attempt; and how Lincoln resisted the habeas corpus issued by Chief Justice Taney to enlarge a military prisoner held in Fort McHenry. These examples show that the judiciary possess no more than a moral power, and that they are powerless to enforce their judgments and decrees in the face of executive opposition. If a small Federal court in the District of Columbia continues to send its writs of mandamus to cabinet officers commanding them to perform those acts which the judge decides to be ministerial merely, it is only because the Congress does not take away the power, and because the executive department of the government tolerates the abuse.

But whilst this is

so, it is to be observed that a moral power, when exercised with uniform rectitude, is, VII. The Moral Power in the end, the greatest of all power. In genof the Judiciary. eral, the Federal judiciary have exercised their powers in a manner which has commanded the confidence and secured the assent of the people. The President knows full well the extent to which the judicial branch of the government is entrenched in the public confidence. He knows that he can not resist the judgments of the courts unless he can make sure that he has the weight of public opinion and of public conscience at his back. The Popes of Rome may be said to possess, in a sense, only a moral power; but what a tremendous and enduring power it is! Nations crumble beneath the tramp of

125 Federal Cases, 190.

I have already noted the failure of

attempt to enjoin the President from enforcing the reconstruction acts.

invading armies; "empires melt from power's high pinnacle;" the map of the world changes from age to age; but that majestic edifice, depending upon moral and spiritual power alone, stands like a rock - the rock of Peter - untouched by the mutations of time and the upheavals of physical force. So it is with the American judicial establishment. The judgments and decrees of the courts are obeyed by the Executive because they receive the assent of the people, and because the Executive well knows that he would not be sustained by public opinion if he resisted them. The Federal judiciary are not elective: those judges are appointed during good behavior, which means during life, or until they choose to retire. They are in no practical sense responsible to the people, not even for good conduct in office; for the difficulty of impeaching a Federal judge is so great that, in the language of Mr. Jefferson, “impeachme has long since ceased to be a scarecrow." And yet nearly all their work commands the confidence of the people, and nearly all they do escapes public criticism. They are rightly supposed to be impartial as between suitors and to have no other motive than to administer justice according to law. The law, to the mass of the public, is a far off, mysterious thing; hence laymen do not consider themselves capable of criticising judicial decisions. If those decisions reach results which seem opposed to natural justice, the lay mind acquiesces in them, under the supposition that the court is administering the law as it finds it, and that the fault is not the fault of the judges, but the fault of the law. The lawyers, who alone have the ability to criticise judicial decisions, are courtiers in an almost literal sense, and are afraid to offend the power before whom they must, day by day, appear in the work of earning their daily bread. Thus it is that, while all other public functionaries find themselves the targets of criticism, and even of abuse and ridicule, the judges escape criticism even more than do the ministers of religion. The idea is often advanced that they are not to be criticised even though they are known to do wrong; since the confidence of the people in their judges is the only remaining ligament that holds our institutions together. But I submit that the truth concerning public men and measures in whatever de

partment of government, when clearly ascertained, ought to be told under all circumstances. But so it is that the courts of justice are entrenched in an affectionate loyalty on the part of the bar and the people, and especially on the part of the bar. To a right-thinking lawyer, the court room is a sanctuary. When he enters it, it seems to be filled with an atmosphere of sanctity like a temple of religion. He feels a reverence for the judge and a sense of allegiance to him; and, although he can not quite analyze the feeling, he would not divest himself of it if he could. And to a large tent this feeling extends beyond the bar and permeates the mass of the people.

VIII. What this Moral

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This moral power has placed the judiciary in a position where it superintends all other departments of the Power has Achieved. government. It is true, as pointed out by the venerable Mr. Justice Field in his retiring address, that it.. operates negatively. Its restraining power upon the other lepartments of the government may be summed up in the words "this law shall not be executed." The rederal judiciary have pushed their ower forward, not without some retrocessions and abregations, until we see such spectacles as this taking place under the eye of the public and without dissent that the sergeant-at-arms of one of the houses of the sovereign Legislature of the United States, who has obeyed the order of the House in imprisoning a witness who has refused to testify before a committee of the House, without claiming any constitutional privilege, the order of the House being absolutely legal under a previous decision of the same court,1 is condemned to pay twenty thousand dollars in damages, which damages are afterwards paid out of the public Treasury of the United States ! ? That both Houses of the Sovereign Legislature of the United States must bow down to, and ask the consent of, a judge of a small local court of the District of Columbia to compel recusant witnesses, who do not claim any constitutional immunity, to testify in an investigation necessary to ascertain the truth concerning certain charges of corruption on the part of their own members.

1 Anderson v. Dunn, 6 Wheat. (U. S.) 204.

2 Kilbourn v. Thompson, 103 U S.

168. This was the preliminary decision; the result of the case was as stated in the text.

2

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