The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-04-15

Iegisa-
uye ana judicial departments, there in the admnistra-
on o The laws and the discharge Of the functions OF
government certain class OF inquiries judicial their
nature, but which conided 10 officers moi
part OF the Judiciary, strictly so called Thus in Eng
and master IN chancery performs duties which are
.ainy IN Their nature judicial, and which conferred
upon MN Dy statute or the mmemoral usage of the
OF which he is officer His decisions, involvng ad
INDICATIONS upon matters OF law and fact in coneslaon
between parties are Tor some purposes. and for the
chancery IS not and never has been. from the most
ancient periods OF which there is any trace of his Office
tegarded as one OF The judges OF England In the Year
BOOK t27 hen VIII, io l3) il s said that in the court
OF chancey there is but Judge, vz the chancellor;
and presume II was supposed that the acts of l3
William ~, C. 2. and George Ill. 2a--the great
statutes which regulated the commissions OF the judges
and their tenure Of oicehai any application the
masters OF the court Of chancery. .l...s.
IN Ike manner sheriff in England has, judicial ca
pacity and performs several judicial functions In his
Judicial capacity (savs ksone) he is to hear and de-
termne all causes OF forty shlngs value and under in
other civil cases" a Blackstone Com, 3a30 Yet the
sheriff. instead OF being appointed quamdu bene ges
ser,n and with stated salary appointed for year,
1t is unnecessary to multiply these illustrations from
English usage TO show that there is class OF inquiries
OF Judicial nature, constituting in the exercise
OF power and generally directed for special pu-
pose which are conhded TO officers who not judges
This usage in truth much older than the very origin of
English law and was derived apparently from the Roman
jurisprudence There class OF officers under the
Roman law called the pedane dces the assistants of the
PIaior, to whom he in the habit of delegang some
OF his judicial duties for special purposes and who
allowed to receive grauites from the parties for their
vices (Dg il, 1, l6; Just Novel, lxxxii, a) There
is little doubt that the Office Of was borrowed
from this source. .a .@-
When come 10 the practice OF governments, con-
suted under written constitutions, carefully
separating the judicial from the other powers of govern
ment, and strictly defining the tenure of the judicial or
flee. if we find the usage 10 prevail, and that il
extensively pracsed, it certainly shows that there ex
lists in system also class of inquiries, Judicial in
their nature and special in their purpose which may be
confded to the determination Of officers who are not
judges. The constitution OF this Commonwealth declares
that all judicial officers" shall hold their Offices during
good behavior and shall be appointed by the governor,
by and with the advice and OF the council The
bill OF rights, with great strngency declares
that nee! the legislative, executive. Judicial depart
ments shall ever exercise the powers OF either OF the
Others to the end il may be government OF laws and
not OF men,. Yet the Legislature Of this Commonwealth
summoned 10 assess damages or laying out highways !;
have made il his duty to decide all questions of law
arising on the trial which would be proper for the de-
csion OF judge, and to direct The jury upon any ques
,ous of law when requested By any party and TO certify
to the court, with the verdict, the substance OF any de-
csion or direction BY him given, when any party shall
if neither party does request the sheriff to certify his
rulings they are final and conclusive; and this constr
tutes, In the most ample sense the exercise OF Judicial
power by an officer whom one can suppose is Judge
In like manner the legislature OF this Commonwealth
have authorized the courts 10 appoint auditors TO hear
matters OF account An auditor exercises judicial power
adJudicates and settles matters of law and fact and de-
termnes present right; for although his decision IS not
hna yet changes The burden OF proof ON the plaintiff
to the defendant if the adjudication is in favor OF the
former Yet auditor certainly is not Judge or u-
dcla Officer" within the meaning OF the constitution.
So also. the extensive and important duties imposed by
statute upon commissioners OF insolvency constitute the
exercise OF judicial power But any suppose
that il is not competent TO the legislature 10 regulate the
appointment and tenure of office OF these officers accord
Ing to their pleasure because the constitution hxes the
appointment and tenure OF Office OF all judicial officers "
What is the court OF county commissioners but tribunal
exercising judicial power' Yet The appointment oil
county sometimes vested in the eNecu
tive and sometimes in the people, according 10 the pre-
valng fancy OF the legislature.
II is not necessary 10 go further with the prachce oil
this Common wealth 1t shows that here, as elsewhere
il is well understood that there certain judicial func
ons having special objects, which and mast be ex
ercsed BY inferior ohicefs not appointed qualihed or
the constitution OF the State requires
judges TO be appointed, qualified, and commissioned
This usage prevails under the government OF the United
States Under that government for instance there is an
officer called Commissioner OF Patents He exercises u.
dcia power Tor the question whether one ol TWO rvai
inventors is entitled TO patent is case arising under
the constitution and laws OF the United States and It's
decision involves adjudication OF matters OF law ard TACT
between coniendng parties Moreover, the decision OF
the Commissioner final TO present right; Tor al
though The validity OF the patent may be contested else
where yet the granting of the patent 10 party and
not TO the other clothes the party who receives WIN
the very right for which both con'endingthe right
TO be deemed, against all the world prImd fdte ihe
first inventor OF the thing patented Now, no one has
thought Of complaining OF the creation OF tins Once
improper mode OF exercising the judicial power oil
the United States. "
There are other officers OF the United States whose
duties touch nearly the ordinary administration oil
Justice the OF the United States, IN which capa-
city sit here BY act OF Congress- passed feo'
ruary 90, 1872 the circuit courts OF the Uned States
were empowered to appoint commissioners TO take oal
and afhdaylis in civil causes. BY subsequent act,
passed March 1917. The powers oil these commissioners
were extended TO enable them TO take deposiuons TO De
used in courts OF the United States. By a sil more
act, passed August 49, 1872, Their powers were
further extended, to enable them To arrest and lmprson
for trial persons committing offences against the laws oil
the United States. Nearly nine years therefore, nave
elapsed since these officers have been called upon 10 ex-
ercse judicial power in arrestlng examining and lmps-
oning offenders against The laws Of the United States
Hundreds and thousands oil seamen and oher persons
have by these commissioners been arrested, eKanln
ed and imprisoned and have never heard II n'Imated
that they ought first to have been appointed by the fies
dent and commissioned for life. Yet the power when
they exercise part Of the judicial power OF ibe United
elusive for special purposeto wit the imprisonment on
the party until trial IL settles present rgbt--namely,
that TN party be deprived OF his liberty unll hked
time shall arrive when grand jury will determine
whether to find a bill of indictment against him or NOT
This is clearly the exercise OF judicial powe OF limited
and special nature conferred by congress upon ouces
who not Judges
The truth is then, as it would seem, that IN every
government OF laws, administered by judiciary mere
must be a class of judicial inquiries embraced within
the general compass OF the judicial power on from tnei
special limited and ministerial nature, capable w,hou'
from the action Of the courts and initusied 70 omcers
specially authorized to conduct them IL may pe aneu'
to define the boundary side oil wnlch an mese
cases would range themselves II might be wholly IN.
eypedient TO define IT in written constitution. lhat
exists, jurst entertain any doubt and II seems 70
gl.u.. .i .t.,r hail