Various - "Legend Land, Volume 2"

Hermann Sudermann - "Dame Care"

United States War Department - "Infantry Drill Regulations, United States Army, 1911"

Frederick A. Ober - "Amerigo Vespucci"

Editorial
This paper argues that discourses of love in Ghanaian market literature for youth offer a view into complex negotiations of agency and empowerment. Drawing on Deborah Durham's notion of youth as "social `shifters'" and Francis Nyamnjoh's conception of the "interconnectedness" of agency, I take Ghanaian market literature as one specific case of how African literature for youth foregrounds questions of continuity and change as African societies enter into increasingly complex global relations. In this literature for youth, received notions of love, often constructed out of impressions from American pop and hip hop music, carry new notions of agency that compete with existing "domesticated" forms. Authors like Ike Tandoh and Evelyn Tay employ discourses of love to offer youth alternative avenues for empowerment in a context of socio-economic disenfranchizement. In a creative process of "straddling", this writing both reveals and reproduces the contradictions that obtain in youth configurations of agency.

The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary




The President, while President, however, cannot be compelled to
obey a summons to appear in court. The country cannot spare him
to go here and there in obedience to a writ. Chief Justice
Marshall issued one against President Jefferson, directing him to
appear at the trial of Aaron Burr and bring with him a certain
paper. Jefferson declined to obey, and there was no attempt to
enforce the subpoena. Had there been, it would have been found
that he had taken measures for his protection.[Footnote: Thayer,
"John Marshall," 79.] Marshall's action was based on an
admission by the counsel for the government that a summons to
testify could lawfully issue, though they denied that it could be
accompanied by a direction to produce documents. This admission
is now generally thought by the legal profession to have been
ill-advised. If the President could be summoned at all, he could
be compelled to obey the summons, and nothing could be more
unseemly or inadmissible than an attempt of that nature by the
judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the
disposition of causes against individuals in the United States,
considered as a collection of States or of people within those
States, more freedom has been used by Congress in providing for
the Territories. This has been conspicuously the case in regard
to the Philippines. By the Act of Congress of July 1, 1902, they
were left under the supervision of the War Department, in which
there was constituted a "Bureau of Insular Affairs," the business
assigned to which "shall embrace all matters pertaining to civil
government in the island possessions of the United States subject
to the jurisdiction of the War Department; and the Secretary of
War is hereby authorized to detail an officer of the army whom he
may consider especially well qualified to act under the authority
of the Secretary of War as the Chief of said Bureau." The
officer filling the position of chief published in 1904 this
account of the practical working of the provisions made for the
disposition of matters of legal controversy occurring on the
islands: "The establishment of a judicial system in the
Philippines affords a means for the adjudication of litigated
questions between the inhabitants and of many questions
respecting the jurisdiction and authority of officials of that
government. Whenever possible, controversies are referred to
those tribunals. In some instances questions have arisen
affecting the action or authority of officers of the executive
department of that government in matters controlled by the
discretion of the administrative branch and affecting the
administration of civil affairs. These questions are considered
and determined by the War Department, upon investigation and
report by the law officer."[Footnote: _National Geographic
Magazine_ for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an
administrative or political nature for calling public officers
directly to account for a breach of public duty are our courts of
impeachment. These act only occasionally, and when specially
convened for the purpose of hearing charges against a particular
individual. They do not grant relief to any party injured by the
wrongful acts which are the subject of the accusation. They sit
only to punish the public wrong.

In constituting courts of impeachment, the control of the cause
is generally given to officers of the legislative department, but
judicial officers are often joined with them. Such a tribunal
was long maintained in New York, of which the senators formed the
majority, but in which the chancellor and judges of the Supreme
Court also sat. The first Constitution of South Carolina,
adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying
impeachments, but should the Governor be thus brought before
them, the Chief Justice is added to it, and presides. A similar
provision is contained in the Constitution of the United States
as respects the President. The main reason for putting such a
proceeding under judicial direction is to avoid giving the second
in rank of the executive magistracy, whose function it generally
is to preside over the Senate, a position of authority over his
chief, in a proceeding which, if successful, would put him in his
place. It also, of course, tends to promote a trial in
accordance with all the rules of law. The court in such a
proceeding cannot be regarded as fully organized until the Chief
Justice is present. It is then first competent to prescribe the
rules to govern it during the progress of the cause. This was
the ruling of Chief Justice Chase on the impeachment of President
Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in
judicial power, but her judges a share in that of legislation.
Her Constitution of 1777 provided for a council of revision,
consisting of the Governor, the Chancellor, and the judges of the
Supreme Court, to whom all bills which passed the Senate and
Assembly should be presented for consideration; and that if a
majority of them should deem it improper that any such bill
should become a law they should within ten days return it with
their objections to the house in which it originated, which
should enter the objections at large in its minutes, and proceed
to reconsider the bill; and that it should not become a law
unless re-passed by a vote of two-thirds of the members of each
house. For forty years this remained the law, and the Council of
Revision contained from time to time judges of great ability,
Chancellor Kent being one. During this period 6,590 bills in all
were passed. One hundred and twenty-eight of them were returned
by the Council with their objections, and only seventeen of these
received the two-thirds vote necessary to re-enact
them.[Footnote: Poore, "Charters and Constitutions," II, 1332,
1333, note.]

An obvious objection to this method of legislation is that the
judges who, as members of a council of revision, find nothing
objectionable in a bill presented for their scrutiny, must
naturally have a certain pride of opinion to conquer before,
should its constitutionality become afterward the subject of
litigation before them, they could be in a frame of mind to
render an unprejudiced judgment. One of the bills which came
under the eye of Chancellor Kent as a member of the Council was
afterward the source of controversy before him in court. He
adhered to his original views, but was overruled by the Supreme
Court of the United States. Chief Justice Marshall gave the
opinion, and half apologetically alluded to this circumstance in
these words:

The State of New York maintains the constitutionality of these
laws; and their legislature, their council of revision, and
their judges, have repeatedly concurred in this opinion. It is
supported by great names--by names which have all the titles to
consideration that virtue, intelligence, and office can bestow.
No tribunal can approach the decision of this question without
feeling a just and real respect for that opinion which is
sustained by such authority; but it is the province of this
court, while it respects, not to bow to it implicitly; and the
judges must exercise, in the examination of the subject, that
understanding which Providence has bestowed upon them, with
that independence which the people of the United States expect
from this department of the government.[Footnote: Gibbons
_v._ Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end--the views of the judges in
advance of the enactment of a law--in a different way, has been
from the first quite common. This is for the legislature to ask
them specially for their opinion as to the constitutionality of a
bill before it is put upon its passage. An analogous practice
has always obtained in England, and was followed in several of
the colonies.

Some of our State Constitutions expressly authorize such
proceedings. In the absence of such authority, the judges can
properly decline to comply with the request. It always asks them
to prejudge a question which may later come before them in court,
and to prejudge it without hearing any of the parties whom it may
affect injuriously.[Footnote: See the Reply of the Judges of the
Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind
before the justices of the Supreme Court of the United States.
It was during the controversy with M. Genet, the French minister,
as to his right to refit a captured English merchantman as a
privateer at an American port, and then send her out for a
cruise. By the advice of his Cabinet, the President asked the
justices a series of questions comprehending all the subjects of
difference as to the proper exposition of the provisions of our
treaties with France under which her minister made claim. They
replied that they deemed it improper to enter the field of
politics by declaring their opinions on questions not growing out
of some case actually before them.[Footnote: Marshall, "Life of
Washington," V, 433, 441.] No further request of this kind has
since been made by any of the political departments to a court of
the United States, except such as have been addressed to the
Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give
the legislature the benefit of judicial advice at the opening of
each session as to what laws it might be desirable to enact. The
judges of her trial courts are annually to report to those of her
Supreme Court such defects and omissions in the laws as their
knowledge and experience may suggest, and the latter, after
considering these suggestions, are then, within the next five
months, to report to the Governor such defects and omissions,
both in the Constitution and in the laws, as they may find to
exist.

The duty of the judiciary, in the course of lawsuits, to compare
a statute, the validity of which is called in question, with the
Constitution, and by the decision indirectly to affect
legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving
matters affecting the foreign relations of the general
government, acknowledge in a certain degree a dependence upon the
executive department. If they have a treaty to construe, any
construction of it as to the point in question already given by
the State Department will be followed, unless plainly wrong. If
it becomes material to determine whether a certain country is
subject to a certain power, and the President of the United
States has dealt with that question (as by recognizing or
refusing to recognize a minister accredited to the United
States), his action will be accepted as conclusive. His
proceedings would have like weight if taken within the limits of
his authority with respect to the government of one of the United
States.[Footnote: Luther _v._ Borden, 7 Howard's Reports,
1.]

When questions of this nature arise in a lawsuit between private
parties, the courts can, without notice to them, seek information
by communicating directly with the Department of State. It will
be given by a letter or certificate, and this will be received as
a conclusive mode of proof or as aiding the court in taking
judicial notice of historical facts.

So an official letter or certificate from the minister or consul
of a foreign power can be received and used as evidence as to
facts in controversy peculiarly within the knowledge of that
government.[Footnote: Gernon _v._ Cochran, Bee's Reports,
209.]

In prize cases, which must all be brought before the District
Court, an appeal is allowed directly to the Supreme Court of the
United States, although the judgments of the District Court
generally are reviewable only in an intermediate court. This
secures a prompt decision by the highest judicial authority of a
question which necessarily affects, in some degree, the foreign
relations of the United States.

But there may be cases affecting a vessel claimed as a prize
which are not brought to secure her forfeiture and so are not
prize cases. They may even to a greater extent affect our
relations to foreign governments. How far can the courts, in
dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of
the Constitution. Great Britain and Spain were at war. A
British man-of-war brought a Spanish felucca into Charleston,
claiming her as a prize, and she was advertised for sale. No
proceedings to have her adjudicated a lawful prize had been taken
before any court. The Spanish consul applied to the Circuit
Court for an injunction against the sale, claiming that for the
United States to permit it would be a breach of neutrality and
contrary to the law of nations. The British consul resisted the
application on the ground that a sale could not be forbidden in
the absence of any act of Congress on the subject, except by the
President. The Chief Justice, who sat in the case, gave the
opinion, which was that there could be no lawful sale without the
permission of the United States; that it was a matter proper to
be dealt with by the President; that the court would not say how
he should deal with it; but that an injunction might issue to
stop the sale until further order, unless permission should be
sooner obtained from the President.[Footnote: Consul of Spain
_v._ Consul of Great Britain, Bee's Reports, 263.] Here,
therefore, an act which might have been a _casus belli_ was
stayed by a court until and unless the Executive should intervene
and permit it.

The extradition of criminals under a treaty on the demand of a
foreign government presents a debatable ground in respect to the
subject now under consideration. The surrender is an executive
proceeding and a political act. But the laws may provide for a
preliminary inquiry before a court into the propriety of
complying with the demand. They certainly provide for a judicial
proceeding by writ of _habeas corpus_ to release any one
arrested in such a proceeding if held without due cause. Is the
court before which either of these proceedings may be had at
liberty to receive advice or submit to instructions from the
President of the United States?

This question stirred the country to its depths in 1799. Great
Britain applied to our government for the extradition of a seaman
who claimed to be an American citizen and was charged with
committing murder on a British man-of-war. He was arrested in
South Carolina, under a warrant from the District Judge, and
lodged in jail. There was a treaty of extradition between the
two powers covering cases of murder, but no particular machinery
had been provided for regulating the surrender. The British
consul asked the judge who had made the commitment to order his
delivery to him. The judge doubted his power to do so.
Thereupon the Secretary of State, by authority of the President,
wrote him that the President advised and requested him to make
the surrender, if satisfied with the proofs of criminality, as he
(the President) was of opinion that any crime committed on a
man-of-war was committed within the territory of the power to
which it belonged. The judge complied with this request, after a
public hearing on a writ of _habeas corpus_, under which he
ordered the man in question to be brought before him, and in the
course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in
Congress, but the President's course was ably and conclusively
defended by Marshall on the floor of the House,[Footnote: United
States _v._ Nash _alias_ Robins, Bee's Reports, 266;
Robbins' Case, Wharton's State Trials, 392.] and the course
pursued has since been followed in substance by our extradition
statutes.[Footnote: United States Revised Statutes, Secs. 5270,
5272.] These provide for a hearing of a judicial character, and
then, if that results in a determination that a surrender should
be made, it may be ordered on a warrant from the State
Department.

On the other hand, the peculiar provision of the Constitution of
the United States which makes treaties the supreme law of the
land calls upon the courts to enforce them according to whatever
interpretation they may conclude to give them, even if it should
differ from that adopted by the President or the State
Department. If a treaty prescribes a rule by which the rights of
private individuals are to be determined, and those rights are
such as can be appropriately made the subject of a lawsuit, the
court before which it may be brought has as full authority to
construe the treaty as it would have to construe an act of
Congress, were the matter in controversy one of a statutory
nature. They cannot be appropriately made the subject of a
lawsuit so long as the questions involved are under active
consideration in the course of diplomatic negotiation and pending
for decision before the President. Let him, however, once make
his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our
controversy with Great Britain over the seal fisheries in Behring
Sea. There was a serious dispute between the two governments as
to the limits of our jurisdiction over the waters adjacent to
Alaska. We maintained that it ran to the middle of Behring's
Straits and from the meridian of 172 deg. to that of 193 deg. west
longitude. Great Britain contended for the three-mile limit.
Pending diplomatic negotiations as to this point, one of our
revenue cruisers seized a Canadian vessel which was engaged in
seal fishing nearly sixty miles from the Alaskan coast, and she
was condemned, on a libel by the United States, by an admiralty
court in Alaska.

The owner in 1891 applied to the Supreme Court of the United
States for a writ to prohibit the enforcement of this decree of
confiscation. The Attorney-General of Canada filed in this suit
papers in aid of the application, stating that he did so with the
knowledge and approval of the imperial government, and that he
would be represented by counsel employed by the British minister
resident. The writ was refused on technical grounds, but the
court, through Chief Justice Fuller, made these observations as
to the merits of the cause:

In this case, Her Britannic Majesty's Attorney-General of
Canada has presented, with the knowledge and approval of the
Imperial government of Great Britain, a suggestion on behalf of
the claimant. He represents no property interest in the
vessel, as is sometimes done by consuls, but only a public
political interest. We are not insensible to the courtesy
implied in the willingness thus manifested that this court
should proceed to a decision on the main question argued for
the petitioner; nor do we permit ourselves to doubt that under
such circumstances the decision would receive all the
consideration that the utmost good faith would require; but it
is very clear that, presented as a political question merely,
it would not fall within our province to determine it.... We
are not to be understood, however, as underrating the weight of
the argument that in a case involving private rights, the court
may be obliged, if those rights are dependent upon the
construction of acts of Congress or of a treaty, and the case
turns upon a question, public in its nature, which has not been
determined by the political departments in the form of a law
specifically settling it, or authorizing the executive to do
so, to render judgment, "since we have no more right to decline
the jurisdiction which is given than to usurp that which is not
given."[Footnote: _In re_ Cooper, 143 United States
Reports, 472, 503.]

In the following year a convention was concluded between the
United States and Great Britain for the submission of the
question of our jurisdiction over Behring's Sea to arbitration.
The arbitration took place and the award supported the British
contention. Congress passed an act to give it full effect. The
convention provided in terms that "the high contracting parties
engage to consider the result of the proceedings of the tribunal
of arbitration as a full, perfect and final settlement of all the
questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel
engaged in the seal fishery outside the three-mile limit was
seized by one of our revenue cutters. A libel was filed by the
United States in the admiralty court for Alaska and she was
condemned. Her owners appealed to the Circuit Court of Appeals,
on the ground that the seizure was made outside of the
jurisdiction of the United States. If so, they were entitled to
her release. The court held that the limits of this jurisdiction
were conclusively settled by the award, and thus adverted to the
claim that they should treat the case as the Supreme Court of the
United States had dealt with that which followed the seizure of
the year before:

This question has been settled by the award of the arbitrators,
and this settlement must be accepted "as final." It follows
therefrom that the words "in the waters thereof," as used in
section 1956, and the words "dominion of the United States in
the waters of Behring Sea," in the amendment thereto, must be
construed to mean the waters within three miles from the shores
of Alaska. In coming to this conclusion, this court does not
decide the question adversely to the political department of
the government. It is undoubtedly true, as has been decided by
the Supreme Court, that, in pending controversies, doubtful
questions which are undecided must be met by the political
department of the government. "They are beyond the sphere of
judicial cognizance," and "if a wrong has been done, the power
of redress is with Congress, not with the judiciary." The
Cherokee Tobacco, 11 Wall., 616-621. But in the present case
there is no pending question left undetermined for the
political department to decide. It has been settled. The
award is to be construed as a treaty which has become final. A
treaty when accepted and agreed to becomes the supreme law of
the land. ... The duty of courts is to construe and give
effect to the latest expression of the sovereign will; hence it
follows that, whatever may have been the contention of the
government at the time _in re_ Cooper was decided, it has
receded therefrom since the award was rendered, by an agreement
to accept the same "as a full, complete, and final settlement
of all questions referred to by the arbitrators," and from the
further fact that the government since the rendition of the
award has passed "an act to give effect to the award rendered
by the tribunal of arbitration."[Footnote: The La Ninfa, 75
Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be
noticed that this result was reached in a suit by the United
States in one of their own courts, in which the claim of the
government was one of territorial boundary, and yet that the
court overruled the claim and threw out the suit on the strength
of an award made in pursuance of the law of the land. The treaty
was the law. This law provided for the award and made it,
whichever view should be adopted, final. It was therefore for
the court to accept it as final, even against the resistance of
the political department of the government, and do justice
accordingly.

The courts before the Revolution, and in some States for half a
century after it, served as a kind of political mouthpiece. The
institution of the grand jury[Footnote: See Chap. XVII.] afforded
the means. Those composing it are personally selected by the
sheriff from the principal men in the county. It is the duty of
the court to instruct them at the opening of the term which they
are summoned to attend as to the law and practice governing the
exercise of their functions. Frequently this charge was prefaced
by an harangue from the judge on the social, moral, religious or
political questions of the day.[Footnote: "Life and Works of John
Adams," II, 169.] To this the grand jury were not backward in
responding with compliments and perhaps presentments.

In Massachusetts they went even further in 1774. The House of
Representatives of the Provincial Assembly impeached the Chief
Justice for accepting a salary from the Crown instead of relying
on legislative grants, as had been the practice. The Council
before which the articles were exhibited declined to entertain
them. The people, however, felt that the House was right, and
this sentiment was manifested at the next sessions of the courts
by the grand and petit juries in every county. They refused to
take the oaths and stated that they could not take part in
proceedings presided over by a judge who was under impeachment.
No business was done in court until the following year, when,
after the battle of Lexington, new judges were appointed by the
Council.[Footnote: "Life and Works of John Adams," II, 332; X,
240; "Principles and Acts of the Revolution," 100.]

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