The republic., 1851-04-16

form of exercising the judicial power as it is COM
petent TO the General Government to employ.
take It to have been as true at the time when
the Constitution was formed, it has been since,
and had bccn for long time previous, that in all
governments formed upon the English model and
possessing the English constitutional division Of
the executive, legislative, and judicial depart
ments, there il in the administration Of the laws
and the discharge of the functions of government
certain class OF inquiries judicial in their nature.
but which confided to officers not constituting
part Of the judiciary, strictly so called. Thus,
In Kngland, master in chancery performs duties
which are certainly in their nature judicial, and
immemorial usage of the court Of which he il an
officer His decisions, involving ndjudicatons upon
matters Of law and fact. in contestation between
parties, are Tor some purposes, and for the asccr
ter in chancery is not, and never has been, from
the most ancient periods of which there il any
trace OF his office regarded ono of the judges Of
it is said that in the court Of chancery there s but
Judge, viz, the chancellor; and presume il was
never supposed that the acts of 13 William ILL.,, c.
and ] Geo. III, c. 20, the great statutes which
tenure OF office, had any application TO the mas
ters Of the court Of chancery.
In like manner, sheriff in England has judi
clal capacity, and performs several judicial func
tins. ''In his judicial capacity" says Blackstone,
she is TO hear and determine all causes OF forty
shilngs value and under, in his county court, and
ne has also judicial po,oer in divers other civil
"
instead Of being appointed quandiu bens qesseit,
and with a stated salary, is appointed for year,
and receives no salary.
1t is unnecessary to multiply these illustrations
from English usnge to show that there is class of
inquiries, of judicial nature, constituting in one
sense the exercise of judicial power, and general
~ directed for special purpose. which are con-
fided to officers who are not judges This usage 10,
in truth, much older than the very origin of Eng
lish law, and was derived apparently from the Ro-
man Jurisprudence. There was a class of officers,
.xvx1n~ l.s il~Ax T..
the assistants Of the Prwtor. to whom he in the
habit Of delegating Of his judicial duties, for
special purposes, and who were allowed to receive
gratuities from the parties for their services. (Dg
IL J., To-, just Novel; lxxxiii., 81 There is little
doubt that the Office of master was borrowed from
this source.
When we come to the practice of governments,
constituted under written constitutions,
carefully separating the judicial from the other
powers Of government, and strictly defining the
tenure of the judicial office, If we find the same
usage TO prevail, and that it is extensively prac-
sed, 1t certainly shows that there exissin sys
TEN also class Of inquiries, judicial in their nature,
and specialin In their purpose, which may be confded
to the determination OF officers who not judges.
The constitution Of this Commonwealth declares
that call judicial officers shall hold their Offices
during good behavior, and shall be appointed by
the Governor, by and with the advice and consent
of the council. The Bill of Rights moreover, with
tive, executive, or judicial departments shall
exercise the powers Of either of the Others to the
end it may be q government of laws, and not of
| men," Yet the Legislature of this Commonwealth
have authorized sheriff to preside at trials by ju
ries, summoned to assess damages for laying out
highways; have made il his duty TO s'decide all
questions OF law arising on the trial, which would
the jury upon any questions Of law when re equcsted
by any party; and to certify the court, with the
verdict, the substance of any decision direction
Sin s,s given xhsn party .S
party does request the sheriff TO certify his rulings
they are final and conclusive and this constitutes
in the most ample sense, the exercise Of judicial
power by an officer whom no one suppose is q
judge. In like manner the Legislature of this Com
monwealth have authorized the courts to appoint
auditors to hear matters Of account An auditor
crciscs judicial power adiudicates and settles mat
ters of law and fact, and determines present right;
for although his decision is not final, yet it changes
the burden of proof from the plaintiff to the defend
ant, the adjudication 10 in favor OF the former Yet
an auditor certainly 10 not judge, or Judicial
officer" within the meaning Of tho Constitution.
So, also, the extensive and important duties i'm
posed by statute upon commissioners 0fins0vency,
constitute the exercise Of judicial power But can
any one suppose that il is not competent to the
Legislature to regulate the appointment and tenure
Of office Of these officers, according to their plea
sure, because the constitution fixes the appoint
mcnt and tenure of Office of call judicial ofcers?
What 10 the court of county commissioners but .
| tribunal exercising judicial power? Yet the ap-
pointment OF county commissioners is ometimes
vested in the executive, and sometimes in the peo-
|
lature.
| 1t is not necessary to go further with The prac-
| ticc Of this Commonwealth II shows that here, as
elsewhere, il s well understood that there arc GER
tain judicial functions, having special objects,
which are and must be exercised by inferior OFF,
cers, not appointed, qualified, commissioned
the consultation Of the State requires judges to
be appointed, qualified, and commissioned The
| usage prevails under the Government of the Uni
ted States. Under that Government, for instance,
there is an officer called Commissioner Of Patents.
He exercises judicial power; for the question whe-
ther one Of two rival inventors is entitled to q
patent, 10 q case arising under the Constitution
and laws of the United States, and its decision in
wolves adjudication OF. matters of law and fact be-
tween contending parties. Moreover, the decision
Of the Commissioner is final to present right;
for, although the validity of the patent may be con-
tested elsewhere, yet the granting of the patent to
one party and not TO the other, clothes the party
who receives it with the very right for which both
we're contcnding-the right to be deemed, as
against all the world, Yrima focs, the first inventor
OF the thing patented. Now, one has ever thought
OF complaining of the creation OF this Office
improper mode of exercising the judicial power of
the United States.
There other officers of the United States
whose duties touch more nearly the ordinary ad-
ministrAtion of justice in the courts Of the United
States. in which capacity now sit here. By an
act OF Congress passed February 20, 1912, the cir
cult courts Of the United States were empowered
to appoint Commissioners to take bail and afida-
Wits In civil causes. BY subsequent act, passed
March l, 1877, the powers of these Commissioners
were extended to enable them to take dcpositions
be used in the courts of the United States. BY n
still more recent act. passed August 23 1912. their
powers were further extended 10 enable them TO ar
rest and inprison for trial persons committing Of
fences against the laws Of the United States. Near
ly nine years, therefore, have elapsed since these
officers have been called upon to exercise judicial
power in arresting, examining, and imprsoning
offenders against the laws OF the United States.
Hundreds and thousands Of scamen, and other per-
sons, have by thcsc Commissioners been arrest
II n nd iTnn ped md 6vyoh have
heard II ntimatcd that they ought first to have been
appointed BY the President and commissioned for
life. Yet the power which they exercise is part
Of the judicial power of the United States. The
result of the examination is final and conclusive
for special purpose. to wit, the imprisonment Of
the party until trial. II settles q present right,
namely, that the party is to be deprived of his lib
erty until a fixed time shall arrive, when grand
jury will determine whether to find bill of indct
ment against him or not. This is clearly the
ercise Of judicial power, Of limited and special
nature. conferred BY Congress upon officers who
are not judges.
Thc truth IL then AZ in,