RE: more on Justices of the Peace

[Gerber, Scott]

I haven't read Seth Tillman's paper, but justices of the peace, at least 
historically (colonial America and England) performed judicial, executive, and 
even legislative functions (judicial:  they tried small claims; executive:  
they issued licenses, etc.; legislative:  they sometimes taxed).  I'm not sure 
if DC JP's were different during the Marbury era, but I suspect they at least 
performed judicial and executive duties.  Consequently, I'm not surprised the 
Supreme Court was reluctant to pigeonhole them as either one or the other.
 
Scott
 
*****************************
Scott Douglas Gerber
(on leave during 2009-10 at Brown University's Political Theory Project)
Ella & Ernest Fisher Chair in Law and Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

________________________________

From: conlawprof-boun...@lists.ucla.edu on behalf of seth tillman
Sent: Sun 2/7/2010 4:22 PM
To: conlawprof@lists.ucla.edu
Subject: re: more on Justices of the Peace




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 "of!
 ficer ... 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 Tillman

Adjunct 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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