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z (whatever the form) is in substance petent jurisdiction in the principal e no more than a mode of compelle case, must decide all such ques.

ing the opposite party to appear tions, whatever laws they arise unbefore this court, and maintain the der, endless might be the diver. legality of his judgment obtained sity of decision throughout the before: An exemplification of a re union upon the constitution, treacord is the common property of ties and laws of the United

every one who chooses to apply and States, a subject on which the tranits pay for it, and thus the case and quillity of the union, internally

the parties are brought before us. and externally, may materially deAnd so far is the court itself pend. from being brought under the re-. I should feel the more hesitavising power of this court, that tion in adopting the opinions which nothing but the case as presented I express in this case, were I not by the record and pleadings of the firmly convinced that they are parties are considered, and the practical and may be acted upon opinions of the court are never re without compromitting the harsorted to unless for the purpose of mony of the union, or bringing assisting this court in forming bumility upon the state tribunals. their own opinion.

God forbid that the judicial power The absolute necessity that there in these states should ever, for a was for congress to exercise some moment, even in its humblest de, thing of a revising power over the partments, feel a doubt of its own cases and parties in the state independence. Whilst adjudicacourts, will appear from this con ting on a subject which the laws sideration.

of the country assign finally to the Suppose the whole extent of revising power of another tribunal, the judicial power of the United it can feel no such doubt. An States vested in their own courts, anxiety to do justice is ever reyet such a provision would not lieved by the knowledge that what answer all the ends of the consti. we do is not final between the par, tution for two reasons

ties. And no sense of dependence Ist, Although the plaintiff may can be felt from the knowledge that in such case have the full benefit the parties, not the court, may be of the constitution extended to summoned before another tribunal. him, yet the defendant would not; With this view, by means of laws as the plaintiff might force him avoiding judgme

avoiding judgments obtained in into the court of the state at his the state courts, in cases over election.

which congress has constitutionally 2dly, Supposing it possible so to assumed jurisdiction, and inflicting legislate as to give the courts of penalties on parties who shall conthe United States original jurisdic- tumaciously persist in infringing tion in all cascs arising under the the constitutional rights of others CORstitution, laws, &c. in the words under a liberal extension of the of the second section of 3d article, writ of injunction and the habeas (a point on which I have some corpus ad subjiciendum, I flatter doubt, yet a very large class of myself that the full extent of the cases would remain unprovided constitutional revising power may for. Incidental questions would be secured to the United States, often arise, and as a court of com. and the benefits of it to the indi.

POSITION.

United States, because the 33d of the supreme court of the United section of the judiciary act, (1 vol. States, in the case of the United

vidual, without ever resorting to Laws U. S. p. 72.) which, in its compulsory or restrictive process terms, authorises such commitupon the state tribunalsma right ments, is unconstitutional. which I repeat again congress has

It is contended not asserted, nor has this court 1st. That by the 1st section di asserted, nor does there appear the 3d article of the constitutica any necessity for asserting. of the United States, “ The judi.

The remaining points in the case cial power of the United States being mere questions of practice, shall be vested in one supreme I shall make no remarks upon court, and in such inferior courts them.

as congress shall, from time to time, ordain and establish"-and that this judicial power in crimi.

nal cases is, under the constituIMPORTANT CONSTITUTIONAL EX tion, exclusive of the autbority of

the states. Decision of Judge Langdon 2d. That the act of granting all Cheves, of South Carolina, in the warrants of commitment is a judicase of Andrew Rhodes, delivered cial act, and, therefore, in cases unat chambers, South Carolina, on a der the laws of the United States, writ of Habeas Corpus ad Subji-' to be exclusively performed by an ciendum.

officer of the United States.

3d. That it is my duty as judge

of this state, under the habeas corThe prisoner is brought before pus act, to take cognizance of this me, at chambers, on a writ of case, on the grounds stated. Habeas Corpus ad Subjiciendum, 1st. All these questions are im. and the officer in whose custody portant and difficult; but the first he is, exhibits, as the authority by is of peculiar importance

. It has which he detains hini, a warrant been a controverted question from of commitment under the hand and a period anterior to the adoption seal of John Hinckley Mitchell, a

of lhe constitution of the United justice of the peace of this state, States, and still remains unsettled

, on a charge that the prisoner had and I am happy to be relieved by forged or counterfeited a number the opinions i have formed on the of protections for American seamen. This, it is believed, is no of- presents, from the necessity of de

other questions, which the case fence against this state; but is an ciding this. offence against the laws of the 2d. Is the act of granting a war, United States.

rant of commitment a judicial I am called upon, on the part act? I think it is not. I am aware of the prisoner, to discharge him of a late decision, (the case of To from custody, under this warrant, seph Almeida, in Maryland.) i because it contains no accusation which this question has been der under the laws of the state, and it termined in the affirmative. In this is contended, the magistrate who opinion, I cannot concur. The only committed him, being an officer of authority which is relied upon to the state, had no authority to com

support this opinion, is a single mit him for an offence against the expression contained in a decision

EX PARTE ANDREW RHODES.

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States v. Judge Lawrence, (3 Dal- ercise of the mind be a judicial las's Rep. 53.) This authority, it is act, then almost every function of evident, has been misconceived the inferior officers of justice will That was a case in which under be judicial, and even constables, our consular convention with who have, in certain cases, the France, Judge Lawrence, who was power of commitment, will be juthen district Judge of the United dicial officers. This is preposterous. States for the district of New There must be some more correct York, had been required, by the view of the subject, and to obtain vice consul of the French repub- it let us resort to authorities. Our lic, to issue a warrant for appre-object is, to ascertain whether hending captain Barre, comman the function of a justice of the mander of the frigate Le Perdrix, peace, in granting a warrant of belonging to the French republic, commitment, be judicial or minisas a deserter. The judge was terial? It is not denied, that a jusof opinion, that, before the warrant tice of the peace does possess cercould issue, the consul should tain judicial powers, but it is deprove, by the register of the ship, nied that the granting a commitor role d'equipage, that captain ment is a judicial act. We must Barre was one of the crew of the carefully distinguish between the Le Perdrix. The consul offered original duties of a justice of the other proof; but the judge thought peace, and those which have been this indispensable; whereupon an subsequently imposed upon him application was made to the su - the first constituted him merely preme court for a mandamus to a conservator of the peace the compel the judge to issue a war. latter has made him a judicial ofrant. The court, in deciding the ficer; the first authorised him to case, refused the mandamus, and apprehend and commit offenders in giving their reasons, say, “ It -the latter, in many cases, have is evident the district judge was conferred upon him the power to acting in a judicial capacity, when

try and convict. he determined the evidence was Sir William Blackstone, (1 Com. not sufficient to authorize his is. | 351) after speaking of the occasuing a warrant." It is very mani. sion of the first appointment of fest, that it is to his judgment on these officers, says, “it was orthe evidence the court allude, dained in parliament, that for the when they say, he was acting in a better maintaining and keeping of judicial capacity, and for that rea the peace, in every county, good son they refuse to issue a manda men and lawful, wbich were no mus, and founding their judgment maintainers of evil, or barrettors on this distinction, they virtually in the country, should be assigned declare, that the granting a war to keep the peace; and in this rant of commitment is not a judi- manner, and upon this occasion, cial act. I am aware it may be said, was the election of the conservators as all commitments must be found of the peace taken from the people ed on some evidence, in all cases and given to the king; this assignof commitment a judicial act must ment being construed to be by the

e performed. There is certainly king's commission: but still they n opinion to be formed on the na were only conservators, wardens or tre and sufficiency of the evi- keepers of the peace, till the statute ence adduced; but if such an ex 34 Ed. 3. c. 1. gave them the pow.

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er of trying felonies; then they ac them complete judges is that of
quired the more honourable appel- 34 Ed. 3.".-(Ibid.)
lation of justices."

Lord Hale, in his analysis of the “ The power, office and duty of Law, after having said that thereve a justice of the peace depend on two kinds of subordinate civil ma his commission, and on the se- gistrates, those that have a pove veral statutes which have created or jurisdiction, and those that are objects of his jurisdiction. His com- without jurisdiction, says: “ The mission first empowers him singly persons that exercise this power to conserve the peace; and there or jurisdiction, are called judges by gives him all the power of the or judicial officers," (sec. II, p. ancient conservators at the com. 26, 27;) and in sec. 12, of inferior mon law, in suppressing riots and magistrates sine jurisdictione, "affrays, in taking securities for the (p. 29.) he speaks thus: “ The peace, and in apprehending and sheriff of the county is the greatest committing felons and other crimi- ministerial officer; and I call him nals." (Id. 353, 354.)

magistrate because he is a conser: Who are these conservators of vator of the peace of the colun the peace who possess the same au ty, &c. &c. &c." “ Constable and thority to commit as justices of the head constables. These, though peace? Are they judicial officers? they have not any jurisdictions

: Among others, sheriffs are conser. hold cognizance of any fact, yet are vators of the peace.--" Consta conservators of the peace." bles, tithingmen, and the like, are Dr. Sullivan in his commentary also conservators of the peace on Magna Charta, speaking of the within their own jurisdictions; and warrant of commitment, says may apprehend all breakers of the “ Thirdly, the warrant must be peace, and commit them till they only contain a lawful cause, but find sureties for their keeping it:" have a legal conclusion, and kin (Jacob's Law Dict. Tit. Conserva- safely keep until delivered by tea; ior of the Peace, vol. 2. p. 26.) not until the party committing “ Conservators of the peace did doth further order for that would commit at common law, and it was be to make the magistrate, who is incident to their office, as it is to only ministerial, judicial as to the the office of justices of the peace, point of the liberty of the subwho are not authorised by any ex ject.” (2 vol. Lectures on the conpress words in their commission, stitution and laws of England, P but do it ratione officü,(15 Viner, 266.) 8 Tit.“justices of the peace.")

I presume I have now establish“ It seems that the power ofed beyond all doubt, that the at such conservators of the peace, of the magistrate, in granting ! whether by tenure, election, or warrant of commitment, is a miprescription, was no greater than nisterial and not a judicial act. I that of the constables at this day, may be useful, however, to spend unless it were enlarged by some a moment longer on the nature special grant or prescription."- of that judicial power which is (ibid. 4.)

spoken of in the constitution, “ Holt, Ch. J. said he knew not There are functions to be per whether, at first, justices of the formed by inferior magistrate peace were more than high consta-commissioners and other like of bles; but the statute that made ficers, which leave in them a dis

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3ther says, “ the persons who exerpeace 113 p. 26, 27.) He then goes on to

cretion, which, in that particular, of the said United States, who hap

resembles judicial authority, but pen at the same time to be conser1,3 is not of the nature of that judicial vators of the peace of the state? If UVOBOpower which forms one great not forbidden by the constitution spon33 branch of government. It is the of the United States, what other

latter, which is spoken of in the power can forbid it? That consti2. constitution. It is that which Lord tution expressly forbids all it does

Hale defines to be “ a power or ju not authorise. If not so forbidden, risdiction," and of which he fur- / the statute is the supreme law of

the land. All the minor arguments Ecers' cise this power or jurisdiction are of expediency, such as blending . called judges or judicial officers; jurisdictions, neglect of state du

the places or tribunals wherein ties, want of responsibility and speaks # they exercise their power are call others of the same description,

ed courts; and the right by which are of little weight in themselves, they exercise that power is called and are not for judicial, but legisjurisdiction.” (Analysis, sec. 11, lative consideration. Throughout

the whole system of the govern. les enumerate the superior and in- ment, the legislative, judicial and

ferior courts of England, and gives executive functions of the union

us a clear and distinct idea of and the states are blended; the for what may be embraced, and what responsibility of the citizen is di

is meant by the 3d article of the vided, and duties to the states are constitution on this point. They superseded by duties to the union. both mean to speak of trial, judg. But what then? Is it for judges, ment; emphatically of the admin. therefore, to say, they deem them istration of justice, and not the inexpedient, and because they little functions and fuctionaries, deem them inexpedient, declare which are merely incipient and them void? I will not say that ex. ancillary to this great essential pediency shall be always rejected power, which are inseparably inci- in a judicial judgment on the dent to it, and can with no pro- meaning of the constitution, but it priety be called implied powers.

will seldom be a very weighty con• If it has been proved that the sideration and ought always to be act of the magistrate in commit- used very cautiously. But I think ting an offender is a ministerialit highly expedient that congress act, then the ground on which the should confer this authority on the counsel for the prisoner has put

ministerial officers of the states. It this

argument, which is the same is as useful to the states as the relied upon in the case of Al union, that the crimes against the meida, though he has enforced it United States should be punished. with ability and eloquence, entire. Their interests can seldom, perly fails.

haps never, be wisely separated. The only question that remains The crimes punishable under the is, whether the legislature of the laws of the United States, are United States has a right by a sta. great and important, but few in tute, forbidden by no provision of number. Without the aid of the the constitution of the United ministerial officers of the states, States, to give a limited authority to have the laws of the United to conserve the peace to one or States effectually executed against more of the citizens and subjects few offenders (probably not VOL. II.

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