Supreme Court

57'0 CASES IN THE SUPREME COURT LITTLE ROCK; UP'S' 1839 Havalms THE GOV-•ENOE. RICHARD G. HAWKINS against THE GOVERNOR.

PETITION for rule to show cause, why a mandamus should not issue. T-he case oe Taylor vs. Vie Governor,(ante p. . 21,) , mandamus can issue to.the Governor. does not decide that a The Governor of the Stale is not amenable to the judiciary for the manner in which he performs, or for his failure-to perform his legal or constitutional duties. His acts, being politicalormst of course be pelitically ner 'pointed out by examined in the Cenntitution. the man-The Constitution aseigns to himmo ministerial duties to be performed, nor can the law enjoin upon him any streh duty. The principle, that, where a specific duty' is assigned bY law, arid individual

a ri ghts depend upon the performance of that duty, the individual injured his right to resort to the law for redress ; applies only to such officers as have nO legal or constitutional discretion left them. All the offiCers of the gov-ernment, except the President of the United States, and the Executives Of the different States, are liable to have their acts examined in a court of justice. • Whenever the heads or officers of a department are the political or confiden­tial agents of the Executive, ippointed merely to exeucute his will, it is clear that in stroll cases their acts are his acts—and whatever opiniOR may be entertained of the manner in which their discretion may be used, there is no power in the courts to compel that discretion. But if the Governor had signed and sealed the commission of an officer, and delivered it to the Secretary of State to be attested and recorded, the duties of the Secretary being in that behalf purely ministerial, the court would, by mandamus, compel him to perform !hero. Each department of the government has the right to judge of the Constitution for itself—but each is responsible for an abuse or usurpation of power, in the mode pointed out by the Constitution. The Governer is placed under a double responsibility--that of the right of suffrage, and that of impeachment. He is answerable in no other way for hie official conduct, while he Continues in the exercise of his office. All the duties imposed Upon the Executive by the Constitution, including the issuing of commissions, are strictly and exclusively political. The Supreme Court therefore has no power to award a mandamus to the Gov­ernor to compel him to grant a commission. This case was disposed of on the question of jurisdiction. It is therefore only necessary to state that it was a petition for a rule upon James S. Conway, Governor of the State, to show cause why a per­emptory mandamus should not be awarded against him, commanding him to issue a commission' to the petitioner, Richard • C. Hawkins, as Commissioner of Public Buildings.

CUMMINS & PIRE, for the application: The first question in this case is, has this Court the. power to award a

OF THE STATE OF ARKANSAS: mandamus to the Governor, where he wrongfully withholds a commis- .LITTLE sion, which ht is by law required to issue. This, we conceive, has been settled by this court in the case of TayHA-W lor vs. The Governor, (ante, 21) where it was decided that this TII1MOV• court had the power to award a mandamus—inasmuch as that case ERNOR'

was of the same nature with the present; and it may well be conclud­ed that the court meant to say that it had the power to award the mandamus to the Governor, in case the applicant was clearly entitled to his commission—as otherwise that case would have been disposed of for want of jurisdiction, without the elaborate investigation of the applicant's right into which the court went. In the case of Marburg, vs. Madison, 1 Cond. Rep. 267, the Supreme Court of the United States decided, that "where the Legislature proceeds to impose on that officer, (the Secretary,) other duties (than his political ones;) when he is directed peremptorily to perform certain acts, when the rights or individuals are dependant on the performance of those acts, he is so far the officer of the law ; is amenable to the laws for his conduct; and cannot at his discretion sport away the vzsted rights of others." By the law creating the office of Commissioner of Public Buildings, the Governor is required to commission that officer. If that law was in force at the time of the election, all that the Gov­ernor is required to do, is to perform a ministerial act—and he thus comes within the reasoning above quoted. For—as that co 'urt further said—" where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for remedy." And the whole reasoning of the court in that case applies so directly to the present, that it is need­less to do more than refer the court to it.

HEMPSTEND, contra The first question is, can a mandamus be awarded against the Gov­

ernor of the State? The doctrine in the . case of Marbury vs. Madison is Usually referred to as authorizing such a procedure, and however vain it may appear,

it can probably be shown that it does not possess the force of a judi­cial precedent, except as to one isolated point—of jurisdiction alone. Upon a careful examination of the case as reported in I Cond. Rep..

267, it appears that one principle alone is settled by the court, and that

571 ROCK, Jan'y 1839 0

'572 CAMS r itt -SUPREME-COURT triTLE iS; ' 4 .ROcK, 4he autkcirity gioéi iQ the Suprenie''6uri; by 'the act establiihing the 1839 Judicial Courts of the UnitednateS, tei .issici'iorits of mandamus to 'Pub-lie officers, appecirs to be 'Warranted by the conStitntion,": 283: ro. ovl • ThiS one - point cornei undonbtedlji within TRivort. . the doctrine of stare de- and Se far precedent:'Bdt here the 'idea Of a -precedent ends, and the remainder is but an obiteran ópiniim . entitled-to respect only, '-'fiS the einanation of it 'towering:and philosophie Mind; No one can be More ready ,to'adniit, that as a l man; Chief histi c̀e-Marshall ern/id-lished society .as a jUdge; illuminated the :bend-1; But the most pto-•found sagaeity may- 'err; and -AS said "by Blackstone the law and the opinion of the Judge are not always convertible terms, or :orie .drid

. the same thing, since it sometimes- niay happert that,the .Iudge,may mistake the law, and the decision is then not bad law [nerdy, but no law at all.' y The court disclaimed-Pie right to iasue a mandamus, because the grant Of power was unconstitutional. If there was no jurisdiction, :how cou/d it, be rightfully. determined : whether :a mandamus could be •aWarded in a supposed ease? Does it' not present a strange anomaly ' for aJudge .to-say that he has not jurisdiction, and still declare what _the court might or zOould do Wit had, -Can any such .6pinion be •a precedent fit to be-referred to as binding, to say nothing : of*..its indel-icacy? Questions of jurisdiction reach . the very foundation of the authority of courts, to take judicial cognizance of -a ease, and if they cannot, in the Appropriate language of the law, hear and determine it, the cause is coram non judice, and every thing done is a nullity.: :What

principles can be settled except such as relate to the jurisdiction of the court? None: Every thing else 'is within the description of obiter dictum, and is not, therefore, to be regarded es evide.nee*ot; the The reasoning or facts of such an opinion may be looked to in the

investigation of a similar subject, for the purpose of sharpening the intellect, but can never be cited in a court of law as a judicial prece-dent. Technically speaking; there are nothing like facts in issue, Upon which the judgment of law can be rendered. - mandamustannot issue izt all to the Executive Of - the State. ' First: Beeause, by article third of the constitution of:Arkansas, the powers of the 8tate government are divided into three distinct departl. ments, each of them to be, confined'to a separate body of magistracy —those Which are legislative to one, thoSe which are executive to anothervand those which are judicial to another. Out of an abun,

DETHEIE:Y.SICATE.110WITRIVANSAW-) daii,C'edofIcautiOn; .-ik.deIau4e3saiméxedl. co1lectionth1pbrgonsiibeingmflineatlioseldePaririire.ntOoltireieteigifirlibIs-14g-

anylpowehrbelongiligytoi eitherioef4Vis4:0theric; eicept . directed or permitted ,i'-c7)-1.1 bi ,coJ • That la:thing:Which ca'nnO0beidorleidit6-ctli,,retiniqyor.6ttAeff MINOR. the.lage.ncysollndifeetmeani;ds'.iiiprin'ciple oi.l.trdverted ;At ditslapplicatiorilFill.beq.eadilr seen. fizz-61 :11,51vd a'• ER:i? - IfIthe .po*énto-116 zthir4ise§ted inzth-efexectitiVeAlepaittnetiVibyt9d thexiiestitationi low • caii thejiidiciaVEtontr6lithe Petf6irliatiee:lifsit4 withoutAt2theisameiltiniel:eier'Ciiine.„i_j3o-vieribiloWgitTetio-anothiift6ne:-I' partment? It is. the court ' that . requires 'and -commands the act teirb-65;•'E'L donepnaliathecnexecutiveLliaatiAav.eansaliOlition; courcf.hathajmisdittina,AverrithqEdxebitliel4epqrtnietitlj741q. -aaii9411lize •All juriididtion ithliek superidiitynof pOW,eq witliolitotheaneans tbkenfcird'adt:AsS.ttiva.iiomalous7ideanwhiC1-1141613Oilys11:

can-qn.deistemdiicA .eourtiVvitsurelylbefeiiitiousWf3pWeing4ts'alittiof:iit ity in .a.situation to . be disretard-4-ia:ndza-Aittle-leiradinatiOnzWilVslioWibb bow:painfultliatsituntionlioulcbbelfoundvJJat fAtizYL O. -as/NT if. the Executive will not commission the individual Nilien2,-yetigAiitOiarll rilyziiiimande;d,I.ca4rhete:pdaisheillima..-..contempti;.-intaxterat&-iicaql prisonforldiSOlyediene&to . the:MandAteoEthe c.O4r-ttx.;41ieeleetitiVeia;ca‘ functions,must:Ithertsbe"..:.suspen'ded; andithe:Avillrol$h'e.PeOpledariiigW, outragedz.z.AfdhAkmprisotimentidaw last.lorYond tour; it mayi'.1ast:fcitir

an indefinit.time,r.-dePendingKaPoirdiscretiOn7alone.;.c..Whtife'ls=thei::0];• limitIOAhahliscretion:4—'7where-tha re4--iboiyIpoWeil'Thej-jUdgesktii!et:-.:2*:, As iiablerto-; err ,As:-.thec.eXecutii.e,-;:and:...•hOW,if-,!may'llie-aske44as frightful and tremendous .jurisdietiOn..iobtained • istheralany,Im. one departmplitdroni.exercisidw:theThWeri . 6eicingingitc,i,alititifer.f‘ ,:ro

the tie6utivezany:Aking MoreJ.thantlan-..:Autortato'fr,Atie tihefè eieAttite-- :;• 11-̀1 of thiS ..ollitifjsuchoweiiinayab'e:SightfullyfieiekeiSed,t-b What is there sacred in an election by the people,. if tliVdeSignz.;.i'.- and .end of.tlTat electiOn 'A;e •=sithstantiallp aantilted'At4tirrñöIT .menfilpy,:deprivitig.-the-'elecntive.'.Ofstiir3constitntieniaDedn-Ctiän'sVeat the comie appoint:An.: individu.al.,-.6;4erfornotliecdtitieWikiPGroV'eitidt...•

tempdrily; oc-,,vvilPtlie.jndgescth-emselves;Attebd4,td or, to speak More correctly, declare what it; isi.nnethetireitecate:ft

Such4n absurdifyilleverenteed.theimagibitiOn.:DD':'1 TO-whoin.::musP,the;06pfe

57eZ anYrilkettcTiirkiettlitoik

574 CASES IN THE SUPREME COURT LITTLE POCK, by their sovereign will to one man? Must they look to their rightful Jan'y 1839 executive, immured within the walls of a dungeon for disobedience to HAWKiN3 the process of a court, commanding an act involving executive dis-vs. THE GOV- cretion; perhaps, too, against both policy and law? ERROR. The Governor solemnly swears to support the constitution, not as judges understand it, but as he himself understands it. Can any hu­man tribunal force upon him the _unpleasant dilemma of choosing between perjury, on the one hand, and punishment for resisting what he deems an unlawful mandate, on the other? Ile must construe the constitution for himself, independent of the opinion or authority of judges.

But it is said that the executive is sufficiently protected from any assumption of power by the judicial department, because nothing but mere ministerial acts can be controlled by judicial antharity. If the distinction between political and ministerial acts, as applied to the chief executive officer of the State, exists, and can be distinctly

defined, let us see what sort of guard it furnishes. Who is to decide the question lletween acts ministerial and political? Must not the court? Is not the protection a fiincied one, and may not the rights of the executive be as effectually taken away, with as without the distinction,

especially when it is remembered that courts sometimes construe may to mean shall—or, in other words, mandatory language into language implying discretion; and so vice versa ? If the province of construc­tion did not rightfully belong to the courts, and to this court as the highest judicial tribunal in the State, the idea might deserve a more serious consideration than it can now receive. The constitution declares that the Governor shall fill vacancies in offices, the election to which is fested in the General Assembly during

the recess of the General Assembly, by granting commissions which shall expire at the end of the next session. What if he should fail to fill a vacancy?

This power might be called ministerial ; and if any authority can be exercised over the executive, directly or indirectly, by a tribunal professedly co-ordinate, that tribunal might proceed to ascertain when and how the vacancy happened, and command the Governor to fill it by granting a commission.

If this could be legitimately done, why might not the Governor be required to commion a particulat individual? \ If is putting an extreme

OF TIIE STATE OF ARKANSAS, 575 case, but one Which portrays the fallacy of the idea, that the Governor Txrrtz ROCK, of the State is subordinate to the Supreme, or any other Courcin the laioy 1839 Performance of any of his duties. • HAvinme That the three departments in the State governmen t arc co-Ordinate THEIOV. is bey•ond question; and it is a gross contradiction in language to say ERNOR. that each are co-ordinate, and yet in some things, one is subordinate to another. To command is an attribute of sovereignty—to obey, the fate or duty of an inferior. A comMand carries along with it the_notion of supe-riority,.whether • that superiority is Acquired by cornpact or usurpation. It is not conferred upon the judiciary of thc State, with regard to the executive departinent, by any compact, but on the contrary expressly denied. If attempted at all., and no remedy could be found of a constitutional

character, it would be high time to. invoke, with the feelings and earnestness of a- patriot, the interposition of a power behind the con-stitiation, which can make and unmake • governments, and will ever be

found in readiness to •resist any usurpation, from whatever source it may emanate. To counterbalance such reasoning, - it is significantly Said by the advocates of thiS judicial power, that no safeguard is thrown arOund indiVidual rights, and that the executive may trample them down with impunity. It is.a satisfactory answer to say, that the Governor is subject to

impeachment for any malpractice, or misdemeanor in office. The made is preScribed and cannot be mistaken. In case of inapeachment, among other contingencies, an officer is designated, who is to exercise, .the anthority and duties of Governor, until another sball be elected and qualified, or uhtil he shall be acquitted. This very provision against any suvension of the executive 'functions, is nnother strong argument to show that it could never have been the intention of the convention, to vest in the Supreme Court . any 'original -jurisdiction over the Governor, which would drAw along the right of punishing the contempt of their mandate, and that punishment would ordinarily amount to, or induce a suspension of all the Governor's powers. . It cannot be reasonably supposed, that in some cases it was provided against with extreme caution, and that in others it rested on discre­tion alonc—incapahle of being known, impossible to be defined -by legal landmarks, and without any remedy, save in the mercy of mod eration.

11,NnifsurgpmE LITTLE " tacit. 'Putting all:this out, of and,adnaittiPgi'fOr.A rficon)P4t4;tbatzthe ...uh'y 1839 courts do posse* the power claimed for, them.by.§Onl„e, Tay,-itinot!also be asked, what safeguard the citizen,canfhave agamSkthe oppression . THE Gov . tyratAny Of the, judges, :hut L, theix .,:irupeacbment.„;;What , other PmPE: punishment can he invoke 'what other security from 1 repetition of wrongsl The Governor , cannot remove but hy,the intervention: of the

Legislature. Judges have passions and prejudices like other,,men, and • the ermine constitutes : no exemption lioni,error., gut suchvesumptions are , never to be iudulged, with regard to,pub,- ,lic .officers, for, being possible Only i and,d edti ci bk. ern, th 9, occasional wickedness bff man, they can . ;never furnish correct , data for opinion, -but forth an, ,exception,. pna ,therefore possess little or no weight as argument.

truthis,th,at the Governor k onto nt the head of •the, execu-five; part,:of the_‘ gnvernment=resporisible . by way..of impeachment, P.114 is fur.ther ,„poVically reSponsible..to, the,people, for the „uprightness ;of ,his-adminiStration, and I for. a faithful exeeution of„thelaws,:p.4 .irespopObility -is not a. mere eMpty name, but solemnand suhstautia1.7-

With a written constitution :before him, bound to its , support by the :sacredness.of an bath, if he ..Wantonly disregards,it, be. cannot. escape 4 1A vigilanceof: the peeple's :representatives i::anit for alame an d ef-ficient, performance of his trust, cannot ily.the, denunciations of the people themselves. 7, 7 -Mc abject of .03e:federal constitution, and. of the,§tate constitutions wellbalariced. division of power anuong,the,ditlerent partments,Anaking;neither subordinate, but, on the contrary,indepencl ,p,nt,nfeach,,;other,inthe exercise of their several powers,. , The, ad-f„vantagesioff , k mised.loyernMent, are combined; but the ,very Moment that on? 1,..aneh,obtains an uncontrollable superiority overinnotheritlp

bc..avty,pf,the vstern hns lierished, the neeessary.equihbriom has,gene, ,anclusoojety,-inust be,,constantly agitated by the assertion iof-dpspotic PPY5C. r:Pil-thP:0 11ehand,. and .:01anly re§ist nce en the other.„ Anarchy ,ands. onfusion,inust'efisue,lo that , instead of providing purselyesyigi form, ofi. ciyif polity, protective of the freedom of-the citizens we 'have entrusted, itskeeping_ to accidelkt and uncertainty. , The execy-

LAI.Y.P.,94PR4c*M44 ,0:19,j udi ciary to do a sing!e tct, nor tbe Legis--444Fie tO) P_MiOr rOPO! a law.;,:n or upon a. parity of reasonningrcan

either oflthose,branches gorninandthe executive and punish him it he fdiobeys.Jn their a, pprOpriatei spheres, they are certainly independ-

,Tilia -STAT 'OF ARKANSA$.. ent of i taCh otherand only responSible . in the Mode designatediii the '3"gerle constitution:, And in: no case accountable to each other.- ,. . I' , 18.59 Hiw818.

CnAtu .reponse: . nis . & PtiEt, . ' It 15...Oaten a cO, -that this coutt has no . power, in-, any possible cise isr,ua a inaii ariaus to. the .Governot;o1.the,--State.

TO,-.eStablish this/ propositiot4 it wai first OeceSSarY . ,,tet dispoSei of, the ,ease ef iIarbiir v Madison and .that -is ,.effe cted -in The caa-

her „MA.oner;:::by .declaring . so: muck of..the, . . Any ',referencetO the prOent to. be 'n.ti Obiter;.dichim, an4:.theretbrei net Worthy of,...or nqed.i4g. before this - Court aO„examination or retlitation.-. -Chief,Jtistiee Marsliall,.. it is' -.admitted einbellished-:soeiety.a.ridi minated. th. e beneb, biit his decision ...anitthat of_the S, upremecourt is not wOrth.even a . refulation here, becauseit is rn obzt dicri,177,-- l(P .OF .F.Vg to:us. thht the . .gcntlemen;WOul ...h.,aysi.49,89, 14s.,,,ig.:pausFpnr.cprkA.Py.. .,shoWing the . fallacy i:, .01 the „prgument, anthei .wc4kpcs,boc -P.A. Accni-. .clusioni. of ChiefT-J.usticebM trchll, thantv, ,-settipg 'the.,Alickte case

asidP as. c!,11.. 0.4f!er...disqunitri Lace-Jr.: - 3i1:1 The full authority of that case has been recognized-tinguishek.cornrnentators'4,--hyi-Dane,,Sto4;4=4titiftKentfraod.'f' ..b.i.the Sopron-1.e Court:of Aheil.Tniteil vStii,tes?inifjlteliiti'ke Eve Woii,11!ri;a461/, -561i . . Mc c/ipiLi;vs-.71.Sii/i.inni!.;‘,.6.1 ;Petets. ;. 19.;)..,,,.. AVhpiailishoW): by Windt judiciallif.:benal.thaoAiase2h4s ,t.eirk .•Overtnled4-moilifie.,4ori ilObte.d1z..11[Prio . oneltidiard-e-bi§hiA 'Hz the: ethentail tte atis Tot' :no.T.jdrist,flitiStit7,11e-entiMicutli

,itis t.i4Otilt.iiitlifit anier-theilegisialiiret (.14aVtrirelit 1indpefldiit';-;f aeataii:Atit7eie:t&eY 4nyt ifkreiv6li'elOgii.R -e4; rdink;'!fitisilrle.atiOrtilaspti%uritiVAi2PAT'clicikitbrifficii the Performanee ; of any act which anieiffeiltire'8fikefrolit'fir4o trervill -6") l ple-fielqtr.ithi fikalhich „ Itiffititt .httefhlitAti do; if ., Ife"fifeaYiji.ltifi t 4313-jaitidd-KfOr Alibir'jelliail14acts.--.1 A6ciently.-tne' King 'of--Lriglan'd t :he fSikeil'aS lf.2.-:SaAi-36.51.511:iiffie:TOTin' a4-4 note of- Lord Bellamont's. case: who was . prosecuterdtiFart-''Offr'crkl'At

tin

578 CASES IN THE SUPREME COURT l'ITTLY2 ROCK. as Governor of .the Province of New. York. In Mostyn vs. Fabrigas, 3".7 1839 Coup. 11, Lord Mansfield said that a citizen of Minorca might sus-EAmaNs v.. tain ao action against the Governor of that Island for. an .act of official -ruec oy- misconduct. Easoa. Livingston vs. Jefferson, 1 Bralc. 203, was a case in which the defendant was sued for an act done by him as President of the United States. In Marbury vs. Madison the court decided that a mandamus could issue to the Secretary of State to enforce the issuance of a commission; .and in Kendall vs. United States, 12 Peters, 524, the same court decided that a mandamus could issue to the Postmaster

General to compel him to pay over a balance directed to be paid out by Congress.

The Circuit Court of the District of Columbia, whose judgment was in the latter case affirmed, say, " Every public officer who neg­lects or refuses to perform a mere ministerial duty, whereby an indi-*idual is injured, is legally responsible to that individual in some form or other; and rt mandamus is one of tbe mildest forms of action that can be used." In .Marbury vs. Madison, the court said that whether the writ should issue, " does not depend on the office, but the nature of the offence."

In the case of Kendall, the Attorney General, Butler, expressty admitted, that "as the ordinary character of an officer's functions wouhl -not alwaYs determine the true nature of a particular duty im­posed by law, I further agree, that if an executive officer, the head of

a department, or even the President himself, were required, by law, -to perform an act merely ministerial, and necessary to the completion or enjoyment of the rights of individuals, he should be regarded, guoad hoc, not as an executive, but as a merely ministerial officer; and

therefore liable to be directed and compelled to the perfornrtnce of the act, by mandamus., if Congress saw fit to give the jurisdiction." This admission was made by the counsel for the Postmaster, and the legal adviser of the executive of the United States. It is there­fore entitled to some respect.

. Again it is -contended, that whenever the judiciary controls the performance of any executive act, it usurps the powers of the execu-tive, and thereby violates the constitution, lf we admit this to be true, it has nothing to do with the case, because the issuance of the commission is not an executive, but a ministerial act. It is has been so decided to be, in Marbury vs. Madison, and that decision has never been tontroverted.

OF T VZ STATE 07 ARKANSAS: 154 the judiciary might .eontrol the action -of another department, lorir or4Oth departments, and that net directly but indirectly; by declaring fen•yiss9 alaw-trhich-- has passed -the Legislature and received the signature of the eXeCutive, to- be unconstitutional. It wezhad Chosen to take a writ of Tngiov. agaiest the -present occupant of the Office here in dispute, 311"a-aid this,- court -were clearly of the epinion that our client Was entitled

to: the Ace,.and that.the appointMent by The Goiernor was void, Weald theY eot :oust the- incumbent? 'It is a fallacious doctrine that the -judiciary is' not suprente to the other departments. It is the inter-- preteref _the laws and the constitution, and . has the power virtually to

annul their acts, by declaritig them unconstitutional, and so rendering

them inoPerative. Pit the irguineht On which :Most reliance is placed, ii, that as- the -coed Would-have: no z power to enforce its .mandate, it will issne none The question is significantly asked; how can the executive , be punished -for contemPt? . - Can he be impriSoned? If so, his executive functions are suspended, and the will or the peoplez dariogly outraged. What is there sacred in an election by . the people, if this is the ease? Can theeourt appoint an executive ?—or will they act as the executive? :These are all irery portentous questions—significant, arid pet with

a very grave -solemeity.. 'But uefortunately,' they .will equally apply,

and:could, just as pertinently be asked, if we were- noW debating Whether a -mandamus sheeld- issee to a Citcdit Court Clerk. .1If 'he tee-Were conuniiz ted for- contempt, "the wit of the people would be daringly outraged "—and the. wit of, man cannot -devise or discoter a . . diitinetien between, the two cases. We are not -aware of any power in the land superior to the laws.—

Witliew of no p' ower higher and stronger thee the supreme Tribunals „ . of justiee.' - What if the Governor, being the commander-in chief ot the militia, were to: enter this hall at the head of a file-of men, and G . ­d er your honors to vacate that benchlWould 'yell do se because the :executive and judiciary are indepeedent, and because you. have no poiver to punish the Governor for contempt? . Noe , so. The temple of-

justice couldeot be so closed; nor would yea recegnize in the lawleis • intruder the executive ef the State—bet an individual committing c _- gross. ontempt irryour presence; and you Would find the people'Sustain-ing you and enforcing your: mandates. So in this case, if your mandate the Governor is sworn to obey iL Nor is he sworato support the cOnstitiftion • ' and execute the laws as hc understands them. ire ia

CA SES5ILTHEFSURREME KOVIVD vitirtivlswkitticti:tqpiiortitheutiinstittifion.1-g.T46icolistittit;on-rnia.kei ydn Jai-a :4131 st4n tOilltits4tviis ctothe iwandt hnny o .lJhdvf di ide9hte1.7.exeetitilk.elt? ..b.ain dica1lzppiii.bmt6Ofithoiie ;the 46frersaif tHirWitittf;ig: tiitifiatiabbfi l'astvresdritAwlin IeAati o'ptnly.i.Oth eilccipstftic tichrofita wi3Voi.7114ndziteeissuespi: thearGWeenor:fraiseviov;afteyaiitheito6A Oti::41."Ct refniiifgpillutlie;staiidr be .fgeertyott s.. its'ninynother *t-ni. a felin4 nal;e2 44-i4t egsa;iftOtilitt ynti?lhoiliddiaxcathe'2.FidvvterActiceniiDeraietE-7,7 t.li&sopren*.:Cou'itofiiholUaltet1;:St`fitt'sireyersWszlhe#A1 juakiii6tienf?thc?Stiiireine2CourrofiiStiite31-h;tslitihe p owerto . "61forceig-itsETtilitrielitabi!israrirfetli'd-,8npremeenustlol'enter(ri newdufdininnt7k3

in conformity with itS.opinion. , It has not •that pnwerinitire2senie-inrit whithztl*gretitlenian*g:ToeityWrik.:iltrearine;&imprisotntf*siutigts5tif the) Staid.LCO4ibfoF eonfernptitti-azefttsing:ttn:-solie). ' cth csm an date Iiirierof) caloii43-tiforzonedkits':own..;, :ollicersctii ,ex.pu gej.la tiiil grnOn tip n41' r enteirthe.iiiewa-A34.1t;i6h.*filiiioriik.io*ej*iand itlAiscaa§tbegpoxtera to:I:Tr-We th&jurf-grn-enf-jrelokitinperi-Me:. .o 1E7 =Jr:. J. 1‘ 1.1G ebt:4317',CinAIT: :What:ifzjibtr.hireie;,:dallecLop;:tO.:-issue AV: rnandainusAtck7thoiSecretary of St4te4k:the2kaditori yott..11.ecIine-lo_r4OZLI-so;MieC4usp thiey,„are:eiec,titive.Officers;-4-lietause9'oolectutalnot,F.enfor'C:0

our tiecaaseft.):*to,til4;:rnot iMiirism.iiheni-rfertonternpti-, Withnittliwilefeatin i7the .,..-eleCtio offt hejp eOp le in-mid 'commit datii4bute'ligeqinlherr n iii5Tfur. thei.:.icniften de*0 tliat'ill:th cOtt. rtgrantthis appliektionAvyri! can' ivIt ire4O at rig htiksticriannan darntls.ftbyld_Govcrniii;:tqc:filt,a)v,F.iafttrb ey in an ofliceo between . the sessiOns 0E46 Generid-Asserrib.lyii_Tiiisl:',; is an ,inge'rrioitsc.atteinpt reiluaearatitybsurdienzithutiunfortuitateiy the,!case'lia tiyith-e?.,.geritlen-iiirrh'asaibtfenf thJeturesnt i the proser477 oné' `Area plin3ElcanandamtiS tIereilhecause4fib.tiskunigweigiamis.s.i0wisr..,

a thInIsterlalact_bceause_thcpph i nt...7 has-th,e.n dected, . a net jh ij a iteStecittight: to: trie7:oftiepia.td. d•en Ge,a, cheltissitmatteilliteWhirch.th.elf,kocitiiie,.ba5.1no nag, asirre78'eilaii. .th06-7,,T Gartivthi althotigir4t4yould,ber: fifsiduty-Ao Iav — e4ti - cliScretionaesitivtlicTpersonfon-whom hd_ishould con fcy irighlOut*tinflivicrualj rights, ioukt bi mvolvcd h aVolit;'vestect..ri-glit.,to ,the-:oilicov;abd of Atie:enypEnoesTrerogativ:ean::exe-cntiv.e,. ,.act,:, , triiiIwholonartument -,:inc;regard •to,thefithrc . e.: Op a rtglents*Opgf7a.

l)P T.lE-.STATlE 9F 4.NSAit - • - po4r4itiate.9 -,co;equat, and independent, is an .asSunaption..-..: Pops the. :117114 constitution deci are_thein so. ? .14. 9t, at ,all. And that suck is . not-the 1,41 3" 1,81* fact ji... apparent,hecanse the judiciarY can in_ effect annul an act Of, ,niaiiipt; Of. either Or bOth-the .othars. _ It is manifest that all -the arguments advancedby: the gentleman

are bat secondary. 2 The trUe ground is not touched upon, although, .; without it the positions are of no more avail than if taken, as they could-be, ina case ,where a -manciamuS should be asked to a clerk.-.7. There isihehind all these lig • ht-art_ hed. ,.subsidiary argumenti % a main body, Which sonsists in a vague, indefinite, shapeless idea of the innate and inherent majesty pf the executive Office... While weeontend that neither POwer;eiemption, priVilege or imPunity belongs.tO Or: attaches tO the _ execntiva, other than . such as is conferre . d upon and secured -to him by:the .WOrds or necessary intendnient Of the constitution; they, on the Oilier hand, assiMilate his Office to the regal-dignity. of the Crown of England, and from the nature of the office infer Ins non-_