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506 OP MINISTERIAL OFFICERS.

This inquiry is distinct from that question of the application, by State judicial officers, of the national municipal law which has already been considered.

§ 463. In every state wherein the three functions of sovereignty are divided or separately invested, those who exercise the executive and legislative functions have a power of applying the existing law as a coercive rule for private persons; though it is herein supposed that, in a state wherein this division of functions has a constitutional character and the Government exists under law, the limits of the power so exercised must be subordinate to the review of those who hold the judicial function.1

In every state wherein the administration of justice is distinguished from the arbitrary exercise of political power,* the exercise of the judicial function by courts or judges has required the concurrence of officers holding a kind of power which, according to the use of terms among such states, is rather administrative or ministerial in its nature than judicial; though auxiliary or ancillary to the exercise of judicial power by others. Those who, under the Government of the United States, exercise a discretion thus ancillary to that of the courts, or of the judges holding the judicial power of the United States, may, undoubtedly, hold their office otherwise than in the manner prescribed for those judges, without any violation of the Constitution. Since, wherever law is applied under political authority to determine the action of private persons, there is a greater or less exercise of judgment on the part of some one invested with public authority, it is not always easy to distinguish the administrative from the judicial power, or this latter from that ancillary ministerial power which is connected with it. It is a question of public law, and the line of separation will be differently placed in states having different political constitutions.* The rule of discrimination under the American Constitution must be found in the usages of states wherein the functions of

1 Ante, 437. But see lessee of Livingston v. Moore, 7 Peters, 546-549, and p. 668, in Appendix; 2 Brockcnborough's R. 479, 480. 'Ante, §368. • On this subject see Bowyer's Universal Public Law, ch. xxv.

WHAT IS JUDICIAL ACT. 507

sovereignty are divided, and especially in the antecedent usages of England, where they have the character of common law.

§ 464. An ordinary definition of the term judicial, is given by connecting it with the existence of some judge or court; a judicial act is said to be one exercised or performed by a judge or court. But the question here being whether the act to be performed under the authority of the United States is that judicial power of the United States which may be vested only in a court whose judges hold office in accordance with the constitutional requirement, the term judicial must be defined without reference to the public character or quality of the person performing the act: for his capacity is to be determined by the intrinsic nature of the act, not the nature of the act by the quality of the person.1 A judicial act must, from the nature of law, be one in which the coercive authority of the law is made manifest—not in the original creation of rights and obligations between private persons, but in giving them real force by ancillary rights or legal remedies. It is an act of judgment or decision having reference to the elements of jurisdiction—a coercive superior, and a certain geographical territory and its inhabitants.3 Not every act done by a public officer in reference to the existence of a law is a judicial act, or judgment; otherwise the whole mechanism of a republican or constitutional Government8 might be called judicial. In interpreting the Constitution, as before shown, the previous juridical use of words by the possessors of sovereign power who established the Constitution must be referred to; and, as used by them in the technical language of English common law, a judgment or judicial act not only implies a law and persons to be affected by it, but a suspension or determination of that ordinary choice of action which those persons might have had in relation to it,4 and a coercive performance or allowance, in reference to some limited territorial

1 3 Bl. Comm. 23. "A court is defined to be a place where justice is judicially administered:" noting Co. Litt. 58. Here the meaning of judicially must be ascertained as preliminary to that of court or judge.

* Ante, § 26. 'Ante, §§ 357-364.

4 That is, to exercise the natural power of choice and action before the law has been applied as a coercive rule, ante, § 2.

508 ADMINISTRATIVE LAW.

jurisdiction, of that action the right to which had been controverted; so that the relation in which that right is a constituent part is actually established in and for a certain forum or jurisdiction ; this determination, decision, or judgment being thereafter supported by the power of the state, as its expressed will in reference to the persons and things involved in that relation.

§ 465. In the judiciary department of the Government of the United States a number of officers are included whose duties are not judicial, though they involve the application of law to a certain condition of persons and things. Such, without question, is the action of the clerks of the courts, and of the United States Commissioners and State justices of the peace, under the earlier statutes defining their powers.1 Their office is ministerial, and subordinate to the duties of the judges of the several courts. In the exercise of their ordinary power they do not determine or enforce a legal relation, with its rights and obligations, in reference to a definite jurisdiction, as above described ; but only certain temporary relations or remedial rights, ancillary to the action of the judges of the courts in their exercise of judicial power.*

§ 466. This interpretation of the term judicial power, in the Constitution, must also be made with reference to distinctions in the nature of laws resting on the authority of the United States. For as there are ministerial or executive officers in every state, altogether distinct from its judiciary, there is a

1 For the various Acts respecting their powers and duties, see titles Cotnmissionrrs and Justices of the Peace, in Brightly's Digest.

The opinion prevails with the public and the legal profession that the action of the U. S. Commissioners in executing the provisions of the fugitive slave law of 1850, has been determined not to be an exercise of the judicial power of the U. S., by an overwhelming weight of judicial decision. The question whether such action is or is not an exercise of the judicial function, is to be considered in a later portion of this treatise. But it may here be observed with reference to the existence of judicial opinion supporting the negative, (and without questioning the existence of judicial authority affirming the constitutionality of that statute in other respects,) that it appears to rest, almost entirely, upon the correctness of that view of the opinion of the Supreme Court, in Prigg's case, as to the power of State magistrates under the law of 1793, which was taken by Chief Justice Shaw and Mr. Justice Nelson, as has been already noted. Ante, p. 501, note.

'See the older cases of Almeida and Rhodes, in 12 Noes' Weekly Register: « parte Poole, &c., Nat Intell. Nov. 10, Dec. 11, 1821, cited in Sergeant's Const. Law, lstcd. p. 274

APPLIED INTERNATIONAL LAW. 509

particular personal law for the regulation of such ministerial instruments of the state; the administration of which is distinct from that of the ordinary territorial law. Thus there is a rule of action for those by whom the ordinary operation and administration of the Government is continuously maintained.1 And it appears that the power of pronouncing judgment under the military and naval laws of the United States is not that judicial power of the United States which is referred to in the third Article of the Constitution. For although judicial in its nature, and performed under the authority of the United States, it has been by the constant usage of all nations exceptional to the civil administration of justice; though, in England and America, subordinate to it where the rights of persons under civil laws, as distinguished from military, are concerned.3

§ 467. So there is an important class of legal relations (i. e., relations composed of legal rights and obligations) which arise out of that international law which has more of the character of public than of private law, and which, as such, may be distinguished from the ordinary positive or municipal law. From the exterior character of this law, that is, from the fact that it must operate in places not included within the territorial forum of ordinary judicial tribunals, the rights and obligations incident to these relations must be coercively maintained by the executive or administrative function of the Government, acting independently of the judicial function, in a greater or less degree ; a degree determined partly by the general rules observed by civilized states in reference to such objects of human interest and action as cannot, from their nature, be distinctly divided among and included under the limits of different states,3 and partly by national customary law derived from the action of the predecessors of the existing Government in similar circumstances; each

1 In the French, Droit gouvernemental; German, Regierungt Hecht, including police law and the laws of financial economy, Droit financier, cameral und Finanzrecht, jus camerale; see Falck's Juristiche Encycl. §§ 41-44. And, in popular or republican governments, those rules by which the existence, continuance, and action of legislative bodies are determined. See Cushing's Law of Legislative Assemblies, Introduction. * See 1 Kent's Comm. 341, note; U. S. v. Mackenzie, Judge Betts' decision, U. S. District Court, in 1 New York Legal Observer, 371.

* Ante, § 10.

510 APPLIED INTERNATIONAL LAW. .

nation having in this respect a peculiar law,1 a jus proprium, differing more or less from that of other nations, according to the greater or less degree in which it may be historically connected with them, or in which it may have with them a community of origin and language, and a political affinity.*

1 Though always supposed to conform to a general law prevailing among all nations, public international law, the "law of nations" in that sense; and by English and American jurists it is rarely distinguished by any other name. Compare ante, p. 88, note. By the French writers it is designated droit gouvernanental exUrieur; by the Germans, dustera Regiermgsrtcht, or duseeres Staatsrecht; Falck's Jurist. Eney. §§ 45, 136.

9 Thus, whether an administrative Government (not identical with the ultimate possessor of sovereign power) may or may not at its discretion deliver, to the custody of foreign states, persons who are demanded as obnoxious to the punitory law of such states; or, if it may so surrender such persons, whether the act requires the co-operation of two or more of the three functions of power, when separately invested, are questions not determinable by public international law alone, simply as a general rule among nations, but depend very much on the internal public law of the state and of its form of government; which, therefore, must always be taken into account in the application of an international treaty for such extradition or rendition.

Falck's Jurist. Encycl. § 135, Fr. ed. "On distingue avec raison, du droit de$ gens positif de chaque etat particulier, le droit des gens positif universel, attendu qu'oa peut apercevoir, au moins entre les peuples qui entretiennent ensemble beaucoup de relations, un accord sur les regies de droit positif aux-quelles ils conferment leurs actions et d'apres lesquelles ils vculent qu'elles soient jugees."

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