That the same small local court, constantly issues its writ of mandamus to cabinet cicers of the United States, saying to them, "you must do this, you must do that" in relation to their sworn duty of executing the laws of the Union, not for the District of Columbia merely, but for the whole United States.1 It is true that this jurisdiction is disclaimed except where the act is merely ministerial, and does not involve the exercise of judgment and discretion; but as the court asserts the power to decide what acts are ministerial and what discretionary, the court possesses the whole power in the premises. In view of this and other like instances, we must conclude that, according to the modern doctrine of Judicial Supremacy, every department of government lies at the feet of an appointive judiciary, not in any practical sense responsible to the people. Sovereign power, which must in every government rest somewhere, no longer rests in three co-ordinate departments of government, according to the original conceptions, but rests in the judiciary alone. Such is this modern doctrine. To use an English expression, government has "gone into commission." The Supreme Court is the Sovereign. It is not a "Council of Ten," but a Council of Nine. Its enrobed judges are commissioners vested with the ultimate responsibility of government. Its Chief Jus

1 See Kendall v. United States, 12 Pet. (U. S.) 524; United States v. Shurz, 102 U. S. 378; Butterworth v. Hoe, 112 U. S. 50.

40;

2 United States v. Black, 128 U. S. Brashear v. Mason, 6 How. (U.S.) 92; Decatur v. Paulding, 14 Pet. (U. S.) 492; United States v. Guthrie, 17 How. (U. S.) 294; United States v Boutwell, 8 McArthur (D. C.) 172 In his dissenting opinion in Decatur v. Paulding, 14 Pet. (U. S.) 497, 518q Mr. Justice Catron said: "Betweer the Circuit Court of this District and the Executive Administration of the United States there is an open contest for power. The court claims the power to coerce by mandamus in all cases where an officer of the govern

ment of any grade refuses to perform a ministerial duty; and of necessity claims the right to determine in every case what is such duty; or whether it is an executive duty when the power to coerce performance is not claimed. Where the line or demarcation lies the court reserves to itself the power to determine. Any sensible distinction, applicable to all cases, it is impossible to lay down, as I think. Such are the refinements and mere verbal distinctions as to leave an almost unlimited discretion to the court. How easily the doctrine may be pushed and widened to any extent, this case furnishes an excellent illustration."

tice is an enrobed, but uncrowned king. Supported, as he is, by the undoubted confidence of the people, he is like another monarch, described in majestic verse, who—

"Sat on his throne, upheld by old repute,

"Consent or custom."

A philosophical cynic, doubting the soundness of his pretensions, might add: —

"As if his senseless sceptre were a wand,
"Full of the magic of exploded science.”

If some of the able participants in the memorable debate in the American Bar Association could have taken IX. The Possibilities a look forward into the possibilities of the of Judicial Supremacy. new doctrine of Judicial Supremacy, their hearts would have been filled with unspeakable joy. It would have occurred to them that the power of the Judiciary to superintend all the other departments of Government is capable of indefinite expansion. The Judiciary can, by its writs of mandamus and mandatory injunction, say to the executive officers of the government, "You must do this." It can by its ordinary writs of injunction say to them, "You must not do this." The judges of England never supposed that the writ of habeas corpus was an appellate writ; but the Supreme Court of the United States long ago made this discovery,' and has been using it ever since in virtue of its appellate jurisdiction; for, with certain limited exceptions, that court has no original jurisdiction under the constitution. The possibilities of this writ of habeas corpus, in the hands of courageous judges, are great. By its use, sentinels may be taken from their posts, armies disbanded, and the progress of unjust wars stayed. Then, to think of the possibilities that lurk in the writ of certiorari, which is in the nature of an appellate writ, in the judicial superintendence of executive action. Why cannot the President and his cabinet be superintended by means of this writ? Why cannot a proclamation made by the President declaring war to exist between the

1 Ex Parte Bollman, 4 Cranch (U. S.), 75, 101.

United States and a foreign country be, by means of this writ, ordered up and quashed? How easily might the field orders of the President, as Commander-in-Chief of the army, or those of his generals, be overhauled in this way.

Under the advice of the Supreme Court of the United States, an inferior Federal court sent its writ of mandamus to the Secretary of State in the cabinet of President Jefferson, commanding him to issue a commission to a justice of the peace which had been made out by Jefferson's predecessor, but which Jefferson determined to recall. This decision barely gives us a glimpse of the possibilities of the writ of mandamus in furthering an actual judicial supremacy in the hands of a courageous judiciary and directed against timid executives. The possibilities of the writ of injunction are still greater. When Wat Tyler marched with his rabble upon London to demand something from the King, he and his rabble undoubtedly were, according to the ideas of that day, trespassers upon the property of the King, that is to say, upon the King's highway, as much as Debs, Ratchford, and other strikers were trespassers on the lands of the coal mining company here in West Virginia. But, great as his alarm was, it never occurred to the King to have his AttorneyGeneral sue out a writ of injunction in his Court of Chancery, and restrain Wat and his gang from prosecuting their onward march. That expansion of the use of the writ of injunction has come in our day, illustrating the beneficial flexibility of our judge-made law. It will require but another expansion of the use of this beneficial writ to enable a Federal district judge, by this means, to arrest the march of an army on the theater of actual war. If the march of a mob can be thus arrested, why not that of an army? In both cases the foundation of the jurisdiction is the well-known ground of protecting property or business. Why did not Mr. Jefferson Davis think of this great preventive remedy, and sue out, from some convenient Federal court, an injunction directed to General McClellan restraining him from marching on Richmond? And how gladly would that redoubtable general have obeyed the writ! It would not have been necessary, under those circumstances, for him to delay his march until the roads should get dry.

General Butler might have been restrained in this way from the trespass upon private property committed by him in digging the Dutch Gap canal; and he would have obeyed the writ with equal alacrity, even if it had been served upon him on Sunday; though doubtless he would have demurred to a bill for a mandatory injunction requiring him to tear down his observation tower. In case of the disobedience of such a writ, issuing from a tribunal supreme over all other departments of the government, nothing would be easier than to arrest a commanding general at the head of his troops, although this might disconcert a battle. It is true that judicial supremacy will scarcely be able to find means to coerce the Legislature into the passing of this or that law. But what of that? As long as the judges can legislate, and as long as they can find, in the principles of the common law and of equity, remedies for every wrong and inconvenience, what do we really want of legislative acts? Are there not too many of them already? Is it not an universal complaint that we have too much legislation? Is not the diathesis of statutes an intolerable nuisance? How easily can we dispense with that incongruous, contradictory and ill-made mass of stuff which passes under the name of law. But it will be objected that the Legislature must meet at least to make appropriations of money for the purpose of carrying on the government, and that unless this is done, the judges, although "supreme,' can not even draw their salaries. Why so? What are members of the Legislature but trustees of a public trust? And is it not a settled principle that equity will never suffer a trust to fail for want of a trustee? Can not a Federal court, through its own appointed trustees, lay the necessary tax, and levy, collect and disburse it?

1 That this is no fancy picture, see Matter of Stacy, 10 Johns. (N. Y.) to which I have already alluded, where no less a jurist than James Kent, then Chief Justice of the Supreme Court of the State of New York, issued an attachment for contempt, without any preliminary order to show cause, against General Lewis, commanding the armies of the United States at a

military post in the time of actual war. The collision between General Jackson and U. S. District Judge Hall after the battle of New Orleans, which resulted in Jackson sending Hall outside his lines and afterwards being fined $1,000 for contempt, which fine he paid, will be recalled in this connection.

4

66

5

Federal judges in times past have appointed their marshals trustees to collect taxes and discharge judgments against counties and towns; and although this power was denied by the Supreme Court, its decision was not without dissent. Whenever a sufficient occasion arises the court can recall that doctrine, as it recalled its previous doctrine in the cases cited as "State Tax on Railway Gross Receipts," in the Original Package Case, in the Legal Tender Case, and in the Income Tax Case. Whenever a court, not elected by the people, and not responsible to them, assumes supremacy over all other departments of the government,— that is to say, assumes regal powers, it will easily find means, albeit in the form of lawsuits, to execute those powers. Human nature being what it is, a body which, with the acquiescence of the people, has seized to itself the power to be the final and conclusive judge, not only of its own powers, but of the powers of all other departments of the government, will naturally go on expanding its own powers at the expense of the powers of the other departments, until it meets with serious resistance; and such has been the history of the judicial departments of our governments, Federal and State. It will work like that contrivance in mechanics known as a ratchet, forever moving the weight upward or forward, but never allowing it to recede. I do not for one moment impute to the judges of our day a purpose to carry their "supremacy" to any of the lengths here indicated. They are wise, unselfish and patriotic. But there is no telling how far the judges of the future, encouraged by the enthusiasm of courtierlike doctrinaires and by the lethargy of the people, may go. The bishops of Rome were allowed, by the careless indulgence of the

1 Welch v. St. Genevieve, 1 Dill. (U. S.) 522; Supervisors v. Rogers, 7 Wall. (U. S.) 175.

overruling Pierce v. New Hampshire, 5 How. (U. S.) 504.

5 Hepburn v. Griswold, 8 Wall. (U.

2 Rees v. Watertown, 19 Wall. (U. S.) 603; overruled by the Legal Tender

8.) 107.

15 Wall. (U.S.) 284; overruled in Philadelphia &c. R. Co. v. Pennsylvania, 122 U. S. 326, 844.

4 Leisy v. Hardin, 135 U. S. 100;

Cases, 12 Wall. (U. S.) 457.

6 Pollock v. Farmers' Loan &c. Co., 157 U. S. 429, and 158 U. S. 601; overruling Hylton v. United States, 3 Dall. (U. S.) 171, and Springer v. United States, 102 U. S. 586.