seth tillman
Sun, 07 Feb 2010 13:23:25 -0800
I am not responding to the main thread that has gone before, but rather
responding to the tangent as to whether Justices of the Peace ("JP"),
particularly whether early 19th century DC JPs, should be thought of as
executive or judicial officers.
A few years after Marbury v. Madison (1803) (explaining that a DC JP is an "officer of the United States" per the Appointments Clause), the Supreme Court had another occasion to discuss DC JPs. In Wise v. Withers, the issue was the proper interpretation of the Militia Act (1792), which exempted from militia service all "officers .... of the government of the United States." (You'll notice that this precise phrase appears exactly once in the Constitution: in the Sweeping Clause). A Justice of the Peace refused to do service in the militia. (I am not sure if it was Wise or Withers). In consequence of his refusal, a militia court ordered its officer to seize the JP's property and the Justice of the Peace brought suit in the DC Circuit arguing that he was exempt. He sued the militia court's officer for wrongly seizing his goods: i.e., an unlawful trespass. The D.C. Circuit heard the suit: 30 F. Cas. 388 (D.C. Cir. 1805) (No. 17,913) (Cranch, J.), and held, post-Marbury: "the defendant, who was a justice of the peace in the District of Columbia, was not an officer, judicial or executive, of the government of the United States.”). In Cranch's view, the JP was not an "officer ... of the government of the United States" as defined by statute. As such, he owed service in the militia and the militia court's seizure of his goods was a lawful in consequence of his failure to serve. [The complaint does not seem to arise under a federal cause of action under the well-pleaded complaint rule -- perhaps the DC Circuit could hear the case as a court of general jurisdiction and could hear a simple DC trespass action without more.] A short time later, Cranch's decision was reversed by (what appears to be) a unanimous Supreme Court. 7 U.S. 331 (1806), In an opinion by C.J. Marshall, the Supreme Court held: that the two statutory “terms [‘officer of the United States’ and ‘officer of the government of the United States’] … may be used indifferently to express the same idea” and that "If a justice of the peace is an officer of the government of the United States, he must be either a judicial or an executive officer."). Having said that: I thought two aspects of Wise v. Withers might be of interest. First, Marshall was unwilling to commit as to the status of JPs. And for good reason, once he had determined that they were either or both a judicial or executive officer of the U.S., he did not need to determine their exact status. But, that said, he was not sure of their status -- executive or judicial -- either. Second, Cranch's decision seems, at one level, very odd, if not downright contrary to Marbury, which had been decided in 1803. Indeed, Cranch was both an Article III judge and the reporter for the Supreme Court when Marbury was decided. He must have known the holding of Marbury when deciding Wise v. Withers. FWIW: I think Cranch was on to something. I suggest a defense for his decision here: Seth Barrett Tillman, The Peristent Problem of Constitutional Memory, 14 n.24 (Dec. 18, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524008. Comments are welcomed. Seth Seth Barrett TillmanAdjunct Professor Rutgers Law School (Newark) http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891 ; http://works.bepress.com/seth_barrett_tillman/
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