Evening star. [volume] (Washington, D.C.) 1854-1972, 1910-02-28

precedent for the inaction OF justices
when a citizen regularly appearing at the
bar OF the tribunal claims redress ac-
cordinE to the laws Of his country
against one to whom the exalted station
Of senator has occurred.
Duty Owed the Judiciary.
THE court is not able to be free from
a sense OF certain reluctance to enter
upon the expression OF those consider
atoms, yet this reluctance is believed
to consist in a distrust of the courts
ability to portray in adequate manner
its estimate OF the tudiciary's own con-
ception OF the functions OF its tribu.
mails. The withholding or discharge OF
no one Of them is at the pleasure OF a
judge; the judiciary considers itself to
have no functions that lie in personal
choice; none save such as are in the
obligations of duty to interpret and
declare the law in the name Of the
people. without respect to persons.
I'm giving expression to those consid-
eratfons the court would affront the prece-
dents and habits of judicial procedure IL
at this incfpient stage 1t suffered itself to
be tempted to enter. before either party
has been heard upon determination Of
any question which lies in the merits Of
the controversy begun before 1t; whether
the writ of mandamus can or ought to is
sue depends upon the merits OF the con-
troversy and is not yet up: whether any
OF the three several prayers If the COM
plainant's petition can or ought to he
granted, are questions upon the merits
and are not yet come forward: whether
the facts set forth In the petition consti-
tute a cause OF action against the re-
spondents named is q question upon which
both or either Of the parties has the right
to be heard in open court before it is re-
solved against him. and has not yet been
laid before the bar.
The single consideration which up to
this moment has come forward is
whether, by emitting to obstruct the ac-
cess Of this litigant to the courts of his
country, the justice holding the court I'M
lawfully invaded privileges and preroga-
tiveS OF senator's. In going through with
the explanation Of the courts siowness
to align itself upon the side Of that opin-
ion. the court will make such effort as 1t
can to establish the conviction that it
ought nghtfully to be concluded that the
process which was issued had to issue;
that to deny it had betrayed the law.
THE established forms of court process
diner from one another according to the
dinefences between the natures Of the va
rious cases. The nature and propriety Of
the process which was issued Is to be
determined by understanding something
of the nature Of the various original pro-
the nature Of the difference in these pro-
cesses can be understood by attending a
little to the subject Of mandamus and
the field which that writ covered in the
common law, as we'll as its remedial oper-
alton under regulations imposed by the
laws Of Congress.
Quotes John Marshall.
After tracing the law of mandamus
and citing various acts of Congress, CIV
ing to the Supreme Court OF the District
OF Columbia plenary Jurisdiction of pro-
ceedings in mandamus, Justice Wright
quoted from various court decisions ar
gunents sustaining his position. Among
other quotations was one from Chief JUS
tice Marshall of the United States SUI
preme Court In the case Of Marbury agt.
Madison, as follows:
''The very essence Of civil liberty GER
tainiy consists In the right Of every in
dividual to claim the protection of the
laws whenever he receives an injury
One of the first duties of government is
to AFFORD that protection. In Great Brit
ain the king himself. is sued In the re-
spectful form Of a petition, and he never
fails to comply with the Judgment of his
court
THE government Of the United States
has been emphaticaly termed a govern
ment Of laws. and not of men. 1t will
certainly cease to deserve this high APP
peilation II the laws furnish no remedy
for the violation Of a vested legal right.
IT this obloquy is to be cast on the
Jurisprudence of our country 1T must
arise from the peculiar character of the
case.
1T behooves us. then, to inquire
whether there be In its composition any
Ingredient which shall exempt 1t from
legal Investigation or exclude the injured
party from legal redress"
Commenting on a following part of
Wright said: ~ ''|'
The conclusion from this reasoning
is that where a senator is the political
or confidential agent Of the Senate nerd
ly to execute the will of the Senate or
rather to act in cases in which the SEN
discretion. nothing can be more per
fectly clear than that his acts are only
POLITICALLY examinable. But. where a
performance of that duty. it ' seems
equally clear that the individual who
considers hi self injured has a right
to resort to the laws Of his country for
= remedy"
Its Duties Ministerial.
In support of his contention that the
duties Of the members Of the joint COM
mittee on printing were ministerial, and
not legislative, Justice Wright said:
IAN legislative power residing in Con-
gress or in it's members is vested by the
Constitution: no legislative power is or
can be vested in Congress, Or in a part
of Congress. by the laws of Congress it
self; and when 1t appears that through a
law of Congress particular senator's find
themselves in the discharge Of q public
function which pertains only to desis-
mated senators under a law, and which
at that time pertains to no other sena-
tors, and which pertains to designated
senators only by virtue of a. par
ticular law, and which does not
at that time pertain to any other
senator's under that law, the conclusion
that designated senator's are at the time
discharging a function which does not
pertain to senators such. is well nigh
that the additional functions to he dis
charged by designated senator's only be-
cause of law, are additional to the func-
tons which are vested in all senator's by
the Constitution; and inasmuch as all leg
islative power is vested by the Constitu-
ton and as much in one senator as in
another 1t seems to follow that there are
no additional legislative powers remaining
to be vested in particular senator's by par
ticular laws; and such additional functions
as are vested by a particular law must be
in addition to all the legislative powers
which senators. by virtue Of the Con-
Stitution possess: since the Constitution
confers all legislative power. any function
which Is additional to all legislative pow
err must be some other kind OF function
than q legislative function.
"All legislative functions being already
vested by the Constitution before the
enactment Of the law, functions which
tat ovfc npl1 hx,