Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-08

tive, or the judicial, or the legislative depart
rnent, has power to make rules for the iris
OF men, sit in judgment upon their cases, an
J execute those judgments after they have bee
rendered. It Is in opposition to the funda
mental principles of the government unde
which we livs.
Take Webster on this subject. Cooley, il
his speech on the Independence OF the Ju
dietary" has forcibly set forth the necessit,
of leaving with the Courts the power to en-
force constitutional restrictions. at canno
be denied, says he, that one great objsc
Of written constitutions is to keel
the departments of government q
distinct as possible" And it i
equally true that there IS no department
on which l. Is more necessary to impose re-
straints an upon the Legislative The
tendency f things is almost always to aug
ment the ,,9wer of that department in its re
lations TO the judiciary. The Judiciary i,
composed Of few PERSONS, and those not such
as mix ha5itually in the pursuits and objects
which most engage public msn. They are
not, or nsysr should be, pllitic Il men. Taey
have often unpleasant duties to perform, and
! tteir conduct is often liable TO be caaYssssd
and csnsured when their reasons for it are
not known and cannot be understood.
! The Legislature holds the pabic purse
! Il fixes the compensation OF all
other departments; it applies as well as raises
all revenue. It is numerous body, and
necessarily carries along with it a great force
Of public opinion. Its members are public
men, in constant contact with one another,
and with their constituents. I5 would seem
to be plain enough that, without constitu-
| tionsl provisions which should be fixed and
certain, such department, ia case of excite
msnt, would be able to ercsoach On the Judi
| ciary."
This Is one Of the strong reasons Why the
! judicial power should never be exercised by
the head Of political department. In saying
this desire to be Understood as meaning no
ehsctions-certainly not upon the present
| Incumbent. And your Honor, who has pre-
sided over a judicial department SO many
years, whose hair has grown gray while pre-
| siding over one of the most important Courts
| in this State, will recognize the fact that to
| exercise judicial powers requires trained
| judicial mind a man must live in judicial
atmosphere he must be far removed from
political Influences and political restraints !;
and it is for this reason we say the head, or
any portion, Of the Executive Department,
being political in its nature, and
callipg for the exercise of essentially
political powers, should never have the
judicial power slso conferred uoon it.
| believe 1 may say here, with confidence,
that if Of this time it should be determined
Executive department, has the power to hear
and determine, to try, condemn, and execute
the mandates of the law upon an individual,
it would be the fifst Instance ia the judicial
or political history of this country in which
such power has been asserted and main.
tanned. The very theory upon viii our
Government was builded requires of our great
men, requires of the Governors of the States,
and of the men who preside over the ju-
dicial departments. that they with jealousy
shall guard the distribution Of powers, as
made by the Constitution that they
shall keep political influences far outside
Of the Judicial sanctum; that they shall
base the rights Of men upon legal
principles, upon law and fact That
they shall safely guard the hands of the judi
ciary, appointed by the Executive or elected
by the people account of their peculiar
fitness for the determination of the rights of
| men as between each other. l say, therefore,
| that one of the essential elements Of repub-
licsn form of government is the distribution
of these powers to the several heads Of the
| several departments of government; and
when it is conceded that any of the powers of
one can be taken by the people Of the State
and given into the hands of another, the
whole argument is conceded, for one by one
the powers of this Government may be taken
and transferred until all are centralized in
the hands of single individual. If we may
take the judicial power to determine the
rights of my clients in this case and give it to
the Executive, why not give him further
judicial powers. 1t cannot be denied
that the very nature Of the proceedings here
is the exercise of judicial powers; is the
undertaking tc determine facts and TO pass
the Judgment OF the law after that determina-
ton. In addition to THE, and without pur-
suing this subject further, because it strikes
me as being a sslf.eyident proposition TO all
who have studied the political nature and
history Of the Government Of this State, and
of ths United States, desire TO resssart the
proposition made by my learned associate
who last add5e ssd this tribunal. 1t was
said by him, ard correctly. | think, that this
clause. il it co3fers judici d powers upon the
Governor, is in COZ fiict with the fourteenth
amendment of the Z nited States Constisu-
ton. Your Honor's reading will tell you
that there has been much learning
expended upon thst particular pro.
vision of the Constitution as en-
grated into the fifth amendment and
subsequently into the fourteenth amendment,
which provides that no man shall be deprived
of life liberty or property without due pro-
cess of law. | have already said enough
upon the nature of an Office to demonstrate
to a judicial mind that an office is property.
l. NAV be sued for and recovered. The title
to il is limited to the term fixed by law or
the Constitution. And whether or not the
taking of property from an individual by this
tribunal would amount to the taking Of
property without due precsss OF law, is de-
terniued by the decision of the Supreme
Court of the United States beyond question.
I do pos concede the definition of So due pro-
cess Of law as stated by the learned gentle
man who represents the prosecution. Due
process of law has been defined by the
United States Supreme Court in the case Of
Murrsy's Lsssees VS.. The Ho5oken Land and
Improvement Company:
'f'By due process of law. as used in the
Constitution, is simply meant such general
legal forms and course Of proceedings as were
known either to the common law, or as were
generally recognized in this country at the
time of the adoption Of the Constitution.
'iThe words, due process Of law, were
undoubtedly intended to couvsy the
same meaning as the words, by the
law Of the land, in Magma Chsrta.
Lord Coke, in his commentary on those
words z lust 50), says they mean due pro-
cess of law. The Constitution, which had
been adopted By the second State before the
formation Of the Federal Constitution, fol-
lowing the language of the Great Charter
more closely, generally contained tire words,
but by the judgment of his peers, or the law
July Is, 1877, for the government OF the ter
ritory of the United States northwest of the
| river Ohio, used the same words.
| In order, therefore, for Us to ascertain
whether or not this specisl proceeding, this
special method adopted for the detsrmiua.
! tion Of the rights Of property, this special
tribune attempted, we may say, to be created
| by tee Constitution OF California, Is CON-
| planes with the requirements of the four
/ teeuth amendment, it is but nece sary to
search the books TO ascsrtain whether or rot
I iu the United States or in E5glan3, by the
common law, this method Of proceeding, this
manner Of determining Individual rights, was
recognized and generally f5ilowsa. Il has
! been said by counsel OF the other side taat
| this is proceeding new Ia its nasure l.
could not be denied that in the trial of the
| rights Of property and all personal rights,
where they were rot TO be determined in
| Courts of equity, tbs right of trial by jury
was guaranteed by Msgna Chsrts, and
/ bss since been guaranteed by the
| Courts of the United States, and of
the several States. I believe that
/ the rule was that person should be trie1 by
3 jury Of his peers according TO the law Of the
land. This was the common law doctrine
and I challenge the Learned counsel to find a
single instances in the history Of English jur-
| isprudsnce where the executive department
was authorized to csll party before him in
| 8 summary proceeding, in which the Execu-
| tive himself could file complaint before
| himself, charging q MAJ with an offsnse,
pass upon tie facts and the law and exscate
| tie judgment rendered By himself. / chal-
! Ienre counsel to find an instance either b.