The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
Injunctions not infrequently are granted as an equitable relief
against a legal judgment. _Summum jus, summa injuria_ is an
ancient maxim of the courts. The foundation of equitable
jurisdiction is that courts of law cannot always do justice. One
may, for instance, be invited to build a house on another's land,
and promised a deed of the site. He builds the house and then is
refused a deed. The invitation and promise were by word of
mouth. The rules of law make such a house the legal property of
the landowner. The rules of equity make it the equitable
property of the man who built it on the faith of the landowner's
invitation and promise. If the latter sue at law for the
possession of the house, he may get judgment, but equity will
prevent his enforcing the judgment, not because it is not a legal
judgment, but because he is endeavoring to make an inequitable
use of a legal right.
A court of equity sometimes makes a decree establishing a title.
To enforce such a judgment, a writ may be issued, called a writ
of assistance. It is directed to the sheriff and requires him to
do some specific act, such as putting the defendant out of
possession of certain lands and turning it over to the plaintiff.
It is, as appears from instances which have been given, possible
that the execution of process from the courts may be defeated by
violence which they cannot overcome. It is possible in fact
though impossible in theory. As the sheriff can employ the
_posse comitatus_, he ought always to have an overwhelming
force at his command. But it is easier to "call spirits from the
vasty deep" than to make them respond. Public feeling may be so
strong in opposition to the service of the process that mob
violence will be tolerated and even openly supported. An armed
mob can only be effectually met by an armed force which is not a
mob--that is, by disciplined soldiers.
The sheriff, if so opposed, may call upon the Governor of the
State for military assistance. How efficient it will prove will,
of course, depend on the discipline of the militia and the
firmness of its commanding officers. It is seldom that it fails
to restore order, if the men carry loaded guns and are directed
to fire at the first outbreak of forcible resistance.
But the Governor may refuse to comply with the sheriff's request.
In such case, the execution of the process of the court fails
because of want, not of power, but of the will to exercise it on
the part of those on whom that duty rests. In every government
constituted by a distribution of the supreme authority between
different departments, each of them must do its part loyally with
respect to the others, or the whole scheme, for the time being,
breaks down.
Public-domain text, read in full here on John Shaqi.
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