The American Judiciary

by Simeon E. Baldwin

In 1825, a grand jury in Pennsylvania presented as a grievance the suspension of Commodore Porter from duty for six months under sentence of a naval court martial, approved by the Secretary of the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a grand jury in Tennessee presented a "protest against the bold and daring usurpations of power by the present Executive of the United States" (John Quincy Adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of Blount County."[Footnote: Niles' Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to
a grand jury with a long statement of the justice of the
Revolution, its military successes, and the duties of patriotism.
The court thereupon ordered "That the political part of the Chief
Justice's charge" be forthwith printed.[Footnote: Principles and
Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the Constitution of the United States. Jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the United States a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for Governor of Massachusetts, a Federalist newspaper reported approvingly a charge of Chief Justice Dana of that State. He had been an ardent politician before going on the bench and had declined a nomination as minister to France during the preceding year. "The learned judge," said the Boston Centinel, "in a forcible manner proved the existence of a French faction in the bosom of our country and exposed the French system among us from the quintumvirate of Paris to the Vice-President and minority of Congress as apostles of atheism and anarchy, bloodshed and plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin, "Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States made several charges in Maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the House of Representatives as a ground of his impeachment. The article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and Constitution." He had, indeed, used this language:

You know, gentlemen, that our State and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. The change of the State constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. I can only lament that the main pillar of our State constitution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state.

All this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of Guilty on the article of impeachment founded upon it to secure a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of Pennsylvania was charging a Pennsylvania grand jury that the Jeffersonians had assumed a name that did not belong to them. "Such men," he said, "disgrace the name of Republicans by exclusively assuming it. In their sheep's clothing they are ravening wolves."[Footnote: Wharton's State Trials, 47, note.] For this, among other things, he was very properly impeached and removed in 1803, after the Republicans came into power in that State.[Footnote: McMaster, "History of the People of the United States," III, 154.]

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.