The American Judiciary | Page 9

performed in a judicial manner. An act was
passed requiring the Circuit Courts to pass upon claims for invalid
pensions, their decisions to be subject to review by Congress. The
performance of this duty was declined, and the attempt to put a
judgment of a court under the control of the legislature made the refusal
so plainly proper that the act was repealed at the next session.[Footnote:
Hayburn's Case, 2 Dallas' Reports, 409.]
It was easier for the United States to maintain from the first this general
scheme for the division of power than for the early States. Their people
had grown up under too different a plan of government. It had become
so familiar to them that they could hardly believe that it had been
abolished. Tradition for them interpreted their new Constitutions and
overmastered them. The State legislatures therefore continued for a

time to claim some control over the judiciary, or at least a right to
criticise and censure its doings.[Footnote: See Chap. VII.]
In many of our State Constitutions, after providing for a distribution of
powers between three separate departments, instead of absolutely
prohibiting any of them from exercising any power properly belonging
to either of the others, it is declared that this shall not be done, except
as may be expressly allowed in subsequent articles.
Such a declaration was proposed in the draft of the Constitution of
Connecticut, reported to the convention which framed it in 1818; but on
objection it was struck out.[Footnote: Journal of the Constitutional
Convention of Connecticut, pp. 78, 55.] It was thought better to leave
the relations of the departments to each other to be worked out in
practice, and for nearly eighty years afterward the legislature continued
to exercise some judicial power. It sometimes gave equitable relief to
carry out a charitable purpose in a will, which would otherwise fail. It
interfered repeatedly in probate proceedings. It released sureties in
judicial recognizances. It set aside judgments. [Footnote: Wheeler's
Appeal, 45 Connecticut Reports, 306, 315; Stanley v. Colt, 5 Wallace's
Reports, 119.] A decision of the Supreme Court of Errors sanctioned
the practice;[Footnote: Starr v. Pease, 8 Conn. Reports, 541, 547.] but
in 1898 the court overruled its former opinion, and held that as the
three departments were made separate and distinct, it needed no express
constitutional declaration to prevent either from invading the province
of the other, and so that no power not judicial in its nature could be
conferred upon the courts.[Footnote: Norwalk Street Railway
Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter,
1080.]
But may not a power be judicial in its nature and yet not wholly so?
It is practically impossible to establish in every instance a plain line of
demarcation between legislative, executive and judicial functions.
Courts, for instance, make rules of practice. In one sense this is a
judicial act, because it is one appropriate for the judiciary. In another
point of view it is an act of legislation. In nothing does it resemble the

act of judging a litigated cause.
Impeachments are both political and judicial proceedings, but
American constitutions leave them wholly to the legislative
department.
Franchises to exist as an artificial person are the proper subjects of
legislative grant, but with the growing insistence in our Constitutions
on absolute equality of right, they are now almost everywhere given
only by general laws. Such a law will offer incorporation for certain
purposes to any who choose to avail themselves of the privilege by
fulfilling certain conditions and filing certain papers in a public office.
But what shall be the nature of this office, and who shall decide
whether these conditions have been fulfilled and these papers filed?
The legislature may select an executive, a legislative, or a judicial
office. It may entrust this power of decision to an executive, a
legislative, or a judicial officer. It has, in fact, in some States, entrusted
it to a court, and authorized it, if it decided in favor of those claiming
incorporation, not only to record the decision, but to issue the paper
which shows that they are entitled to possess and enjoy the franchise.
It is safe to assert that in no State are the functions of the courts purely
judicial. Many belonging to the administration of the methods of
political government are in all intrusted to judicial officers either
originally or by way of review. Some of these concern such matters of
internal police, as the enforcement of laws to preserve the public health
or to regulate the sale of intoxicating liquors, and the establishment and
repair of highways.[Footnote: Application of Cooper, 22 New York
Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley v. New Haven,
73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur