The instances he cites from Massachusetts are,—1. Sheriffs, who may preside over juries when assessing damages for laying out highways, and may decide such questions of law as arise on the trial; 2. Auditors, who may examine vouchers and state accounts between parties, and make report thereof to the court; 3. Commissioners of insolvency, appointed to distribute insolvent estates; and, 4. County commissioners, who lay out highways.
Now, nothing can be clearer than that, in no one of these cases does the officer named exercise “judicial power.” Indisputably, universally, and necessarily, by force of the phrase itself, the term “judicial power” embraces the idea of a power whose decision can be enforced in invitum; that is, against an unwilling, contesting, resisting party. The sublime power of a court becomes nothingness, and is ridiculous, if its decrees cannot be executed to the very death of the party against whom they are made. For this purpose, they are backed by all the civil power of the state; and should this prove insufficient, they are backed by all the military power of the state; and, even beyond this, by the whole military and naval power of the United States. Without this, judges are but puppets, or no better than “men in buckram.” “Judicial power” does not consist in a sheriff’s presiding over a jury, nor in an auditor’s casting up accounts, nor in a commissioner’s ciphering out the dividends of an insolvent’s estate, nor in county commissioners’ laying out roads; but it consists in entering up a judgment which has the armories at Springfield and Harper’s Ferry, which has the standing army and militia of the United States, which has fifty line-of-battle ships, which has the treasury of the nation, to back it, and to visit with death one man, a thousand men, or a hundred thousand men, if need be, who shall confront it with resistance.
Look, fellow-citizens, at this wretched sophistry. The sheriff must make return of the verdict of the jury to the court of common pleas,—which is a COURT,—and if either party suggests good grounds of dissatisfaction, the whole proceeding is a nullity, and the investigation must be made again; and again and again, and ten times again, until every act and letter of it become unexceptionable. The auditor must make his report to the court that appointed him, and if the court see cause, they set aside both it and him. The acts of the commissioners of insolvency derive all their validity from the consent of the parties, or from the judgment of a court, which substitutes the force of law for consent. And no act of the county commissioners, in taking a man’s land, is worth the paper it is written on, until the verdict of the jury is returned to the court of common pleas, and there formally accepted and recorded. Nay, every intelligent farmer in the country knows the fact, that though the commissioners have laid out a new road, or ordered an old one to be shut up, still, if a party, feeling himself aggrieved, demands a jury, the former cannot be worked, nor the latter closed, until the court of common pleas shall have passed upon the proceeding and ratified it.[23]
If, however, in all the above cases, the parties in interest consent to the acts of sheriff, auditor, or commissioner, then those acts become binding, by virtue of such consent. The party consenting is afterwards estopped from questioning them. But they derive no authority from any “judicial power” vested in the officers performing them. We have a case more exactly in point, and better illustrating the principle, in the fourth section of the ninety-seventh chapter of our Revised Statutes, where it is provided, that “in actions upon promissory notes and other contracts, where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, either under a general order of the court, or by a special reference of the case to him; and the judgment, in either case, shall be entered in the same form as if it had been awarded by the court, on an assessment or computation made by themselves.” Yet who will pretend that this act of the clerk, which is performed only where there is no dispute between the parties, emanates from any “judicial power” in that officer?
The instances cited under the United States constitution have, if possible, still less plausibility. The commissioners appointed by the courts can initiate certain proceedings, by holding parties to trial, &c., but this function is no more judicial than that of the grand jury in finding an indictment. It is a preliminary to a judicial act, but not such an act. The commissioners are not even required to be sworn, and, in many instances, it is known they are not sworn.
So of the case of which so much is attempted to be made,—that of the commissioner of patents. Any party feeling himself aggrieved by any of his decisions can appeal directly to the courts of the United States for redress.
Compare all this with analogous instances in the legislative department of government. The legislatures of most of the states have created commissions to revise their codes of statute law. Massachusetts has had several such. Our revised statutes are a monument of the labor of one of these commissions. But were they legislators? Was their proposed code of any validity until enacted by the Senate and House of Representatives? Just as much as the acts of sheriff, auditor, or commissioners of the different kinds, were acts of judicial power, and no more. Are the selectmen of our towns legislators, because they decide, in the first instance, who are elected as members of our House of Representatives? Are our governor and council legislators, in both the state and national governments, because, on an examination of votes transmitted to them by the selectmen, they issue certificates of election to our state senators and to the members of Congress elect? Do they exercise any part of that power which makes “each house the judge of the elections, returns, and qualification of its own members”? Just as much, I reply, as sheriff, auditor, commissioner, or clerk, does of “judicial power.” They perform acts preliminary or antecedent to legislation, but no legislative act; just as the above-named classes of officers perform acts preliminary or antecedent to judicial decisions, but never, in any case, the authoritative and compulsory judicial act itself.
The strength, or rather, the weakness, of the commissioner’s argument, on this point, consists in the obtrusive, projecting, self-shouting fallacy of using the exact, technical, constitutional phrase, “judicial power,” as synonymous with the popular expression, “a judicious act,” or “the exercise of judgment.” Officers of all kinds exercise “judicial power,” in this broad and popular sense of the phrase; that is, they perform acts requiring good judgment. Umpires, arbitrators, and referees perform acts precisely like those of judges, but they cannot put the whole physical strength of the government in motion to enforce them. So sheriffs decide upon the identity of the party named in their precepts; postmasters, to whom they shall deliver letters, and what postage they shall demand; custom-house officers, upon the nature and value of dutiable goods; assessors, in levying taxes; parents and teachers, on matters of discipline, &c., &c. In a popular sense, they may all be said to exercise judicial power; but no particle of that power which, by the fundamental law of our government, is vested in the “courts.” Their acts are all examinable by the courts. They cannot set the arm of the government in motion to execute their judgments. Indeed, the whole argument of the commissioner on this point is but a play upon words. It is only a trick of verbal legerdemain. The premises he starts with are unknown to the constitution, and the conclusion he comes to is abhorrent to humanity.
Does not every body see that, in order to make the cases parallel, in order to obtain any legitimate ground of comparison between them, Sims should have had the same power of appealing from the commissioner’s decision, to a court, which power of appeal belongs of right to a party who feels aggrieved by the act of sheriff, auditor, or commissioner; and that the certificate should bind him only by his voluntary assent?
But there is another point in the commissioner’s opinion which is worthy to be companion to this. I proceed to consider it.