The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-06-28
Power of a Court Over the Executive.

From the Times.
A que 3tion of great importance and interest
was recently decided before the Circuit Court
in the District of Columbia one whose result
will be felt very far beyond the particular case
in which it arose. The case was a suit for libel.
1t appeared that the plaintiff, Mr. Mesaur, had
dealings with the Government in 1864 in furnish.
ing supplies to the Quartermasters Department.
The defendant, Mr.. Clephane, as the plaintiff
charged, wrote a libelOus letter to the War De-
partment impugning his 10y atty, whereupon the
Quartermaster'e Department was ordered to
cease 10 deal with him. which was done, AM he
brought this suit to recover damages.
On the trial of the cause a subpoena was issued
to Secretary Stanton, directing him to appear,
and to bring with him the original letter from
the iles OF the Department. This the Secretary,
ON the advice of the Attorney-General, de-
clined to do, and thereupon the plaintiff ap-
pieo to the Court to compel the production OF
the psEer
This application brought up the question,
viZ:-Whether a court has the power to compel
the executive officers of the Government TO pro-
duce before 1t papers in possession of the Gov
ernment because they may have a bearing upon
the results OF a litigation between private par
ties. Judge Olin, before whom the cause was
being tried alter taking time to consider the
question, held that the Court had not the power
that 1t was manifest that the question, whether
it was proper for matter within the private
knowledge OF the Executive to be made known,
must be one for the discretion either of the
Executive or the Court, and therefore it must
clearly be within the discretion of the EXecu-
tive alone, or else the Judicial Department of
the Government would have supreme control
over the Executive Department instead of being
Of coordinate authority with it,
The Judges decision Is sound and we'll rea-
soned. There must DE in the nature of things
many matters communicated to The Executive
whiC b ought not to be made public. How many
communications of the same kind as this one in
question must have been made! This one
appears 10 have been false and libelous, as the
Jury rendered verdict against Mr.. Clephane
Tor $4,000 damages. But IN all the miXed-up
state Of affairs throughout the Border States
during the past years there must have been
many cases where true information as to the
loyalty or disloyalty of this man or that must
have been of vital importance to the Govern
ment and yet could only have been given at the
risk not OF libel suits only but often OF life. And
If 1t had been understood that any such intorma-
ton when given was within the power of any
Court, there would have been many q suit
brought for the sole purpose IN reality of dis
covering what had been written or said by
patriots, and revenging it upon them.
1t Is true that we are in a measure freed from
such difficulties now, but we are not yet en-.
tirely freed, and moreover if this principle were
established by the Courts as the plaintiff claimed
1t 10 be before Judge Olin, 1t would not be such
CORES pondence alone which would be thus
brought out. The Government could be COM
PEELED Just well TO produce ITS own correspon.
dence with its own agents, If that was in any
way connected with any possible litigation.
Foreign Governments would like very well to
have seen a principle established which would
give them the power, by getting up a litigation,
to search the diplomatic correspondence of the
Government. And yet it is difficult to see why
they could not do it, if the rule had been held
differently from the conclusion to which Judge
Olin came.
1t is very WELL especially now when the
tendency is abroad to confound the distinctions
between the different departments of the Gov
ernment and to bring all the powers of all into
one, to have, in one instance at least. those dis
served. 1t is sometimes said that Judges are the
only kings in this land, II the contrary rule on
this question had been established that testing
word might we'll be said IN earnest,