The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
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.
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