Attorney-General ex rel. Bashford v. Barstow

4 Wis. 567

Opinions

Whitoít, 0. J.

There is no substantial conflict between the affidavits on both sides. It is apparent to the most casual observer, that there are now three parties before the court, viz: The people, the relator and the respondent, and that the public interests are not hostile to those of either of the parties. Heretofore the attorney-general, as the officer of the people, has been allowed to manage cases of this kind, as it was presumed that the most vigorous prosecution would come from that source. The public is probably in little danger here, because the interest of the parties will bring out the faets for adjudication. Of course, this method would not be the best for all where the attorney-general does not act in good faith.

The question is, who shall control this suit ? The attorney-general and the relator both ask it.

The information filed by the attorney-general, and that sought to be filed, both set out such a case of intrusion into office as is contemplated in the law. The law gives the attorney-general power to proceed in his own name or 'that of the relator. See. 22 of chap. 126, Rev. Stat. gives the court power to inflict a fine of $2,000 on the intruder, if found guilty. The attorney-general must prosecute to the end, but when the right is established, then the relator may sue in his own name, for damages.

The counsel for the relator contend that there is a difference between the two informations, and that when the attorney-general has commenced in the relator’s name, he (the relator) has a right to control the suit, as one of private right.

But the relator is not alone interested, the people are interested that the rightful person should have the office. The public interest steps in and modifies the private right; and this public interest is not hostile to either the relator’s or the respondent’s private right.

This case must be decided upon .the various statutes. Nu merous cases occur in English practice, but they are not of paramount authority, unless in harmony with our statutes.

But it is claimed that the law of 1855 gives the right to the relator to sue in his own behalf. That statute is as follows:

“Section 1. Chapter 126, of the Revised Statutes, is so amended, that, whenever any citizen of this state shall claim any public office, which is usurped, intruded into, or unlawfully held and exercised by another, the person so claiming such office shall have the right to file in the Supreme.Court, either in term time or vacation, an information in the nature of a quo warrantor upon his own relation, and with or without the consent of such attorne37-general, and such person shall have the right to prosecute said information to final judgment, in all other respects, as provided in said chapter. Provided, He shall first have applied to the attorney-general to file the information, and the attorney-general shall have refused or neglected to file the same; and in such case he shall be liable for the costs, if he shall fail to establish his right to the office.

“ Sec. 2. This act shall take effect immediately after its passage.”

It is not easy to give a satisfactory construction of this law, but after due consideration, it is certain that the right of the individual to proceed depends on compliance with the condition of an application to, and refusal by the attorney-general. The relator contends that this condition has occurred.

The relator’s counsel contend- that a fair construction of this law- requires- that the attorney-general shall file the information presented to him, or if he neglects or refuses to do this, then the relator has the right to proceed.

What is the intent of the law of 1855 ? Suppose the attorney-general had, of his own will, on the day after the governor was sworn in, filed an information, could the relator come next day and file another, and thus two suits proceed at once ? Clearly not; and it is clear that the law contemplates a case where no-information is filed, and the attorney-general absolutely refuses to move in the matter. It is hence not necessary to inquire which of the two informations is the best, or whether time is gained .or lost; and the court does not see that the contingency has arrived when it should interfere. The motion must be denied, without, however, expressing any opinion as to the course of the court if the attorney-general shall show bad faith towards the relator. There are three parties in court, and the rights of all shall be protected, if the court can protect them.

Sjiith, J.

This is an application for an order of court to discontinue the information filed by the attorney-general, and to permit the information presented by the counsel for the relator to be.filed, and henceforward to commit the control of the case to the relator or his counsel, to the exclusion of the attorney-general.

On the 11th instant, application was made by the relator to the attorney-general to file an information against the respondent. On the 12th an information was presented to the attorney-general by Mr. Knowlton, as counsel for the relator, with a request that he should file it by the hour of 11 o’clock on the 15th instant. On the 15th, about the hour of 11 o’clock, the attorney-gen eral filed an information in the usual form, but not ihe information drawn up ,and presented to him by the counsel for the relator. The draught of the latter differs from that of the one. filed, in that it sets forth the specific facts on which the relator bases his right to the office of governor, and whereon he bases the charges of usurpation and intrusion by the respondent.

The attorney-general objects to the motion of the relator, and insists upon his right to conduct the prosecution of the suit.

The respondent, whose appearance has'been regularly entered, objects to the motion, and

The relator insists upon, and urges his right to dismiss or to control the suit.

Under these circumstances what are the legal rights of the respective parties ?

1. The office of governor is one of high dignity, in which the people have the paramount interest.

2. It is one of honor and emolument, in which the person legally elected has a peculiar and individual interest, and

3. The respondent, who is charged with usurpation and intrusion, has a deep interest in the proper, legal conduct of the proceedings, which involve both his fortune and reputation.

In ordinary prosecutions of this nature, controversies of this kind seldom arise. We look in vain for authority upon the precise question here involved. It seemed tó be conceded, however, that the proceedings must be commenced and carried on in the name of the attorney-general. The usual practice is, for that officer to institute the proceedings upon his own relation or that of another; or, for the relator to apply to that officer for the use of his name; or, if he refuse bn such application, to apply to the court, .who may allow the information to be filed or not, in their .discretion, in view of all the circumstances of the case.

It is only in case the attorney-general refuse, or so conduct the suit as to indicate hostility to the right of the relator, or on leave granted by the court under all the circumstances of the special case, that the relator will be permitted to control the proceedings, against the authority of the attorney-general.

It is apparent to my mind, that the respective interests and rights of the several parties represented in this proceeding do not stand in the same relation, as they are ordinarily arranged in personal actions in which private rights are alone involved. Were the rights of Mr. Bashford and Mr. Barstow, only involved, there would be no difficulty in designating the field of action and arranging the combatants. Should the law officer of the government, for and in behalf of the people, disclaim all interest in the controversy, and thus leave the relator and the respondent to contest their personal rights in relation to the office, or had the legislature, the representatives of the people, so clearly indicated their will that we could be justified in holding that they had intrusted their interest in this office to the selfishness of the private parties litigating in relation thereto, in such case we might readily dispense with the further attendance of the attorney-general. But the attorney-general does not disclaim in behalf of the people, nor does he retire from the controversy, leaving it to the contest of individual right. On the contrary, he insists that the people are deeply interested, and that it is his duty to protect those interests. Nor can we so construe the several acts of the legislature on this subject, as to justify the conclusion that the public interest is left to depend solely upon the character and result of the personal contest.

It is impossible to read chapter 126 of the Revised Statutes without perceiving that the statute has provided for the deter mination of tbe rights of the three parties litigant in one suit, viz: the people, the relator or claimant, and the respondent. The statute contemplates that a double judgment may be rendered, one against the respondent, and another in favor of the relator, but not necessarily, dependent and correlative; for though the respondent may be found an usurper, the relator might be found a pretender, in which case, though the one would be ousted, the other would be denied accession.

But it seems to me quite certain that in the passage of chapter 126 of the Revised Statutes the legislature never contemplated the occurrence of such an antagonism between the public interest and that of the citizen who might become the relator, as seriously to impede the due protection and prosecution of the rights of the latter. Ordinarily the public concernment has been so trivial that the public prosecutor was content to leave the suit to the management of those personally interested, or the interests of the relator have so harmonized, or so failed to conflict with those of the public, as to afford ample scope to the efforts of both parties. Perhaps it is not improper for me to remark, that from the public history of the late election, as well as from the conceded facts shown by the documents accompanying this motion, I have been utterly unable to discover any adequate occasion for such an antagonism here. But two persons were before the people as candidates for their suffrages for the office of governor. The public concern is, that the person having the greatest number of the votes lawfully polled and returned, should hold and exercise the office. But two persons claim to have been legally elected. One of the two most probably is, and the other is not elected. To ascertain which one is so elected is the object of this proceeding, and however the fact may ultimately appear, the public interest is; that it shall be legally determined, and that the law shall be found adequate to its full and perfect vindication. >

It is obvious that this is a tri-partite proceeding, one of the parties being the people represented" by the attorney-general. This officer has also made the relator a party, averring his right to the office. He has therefore undertaken a double duty.

This information is in the usual form, and is adequate to the exigencies of the relator’s interests; and until the attorney-general shall manifest some hostility to the relator’s rights, or fail to perform the duties which be has voluntarily assumed, it would be wrong for this court to interfere.

This court has the constitutional power to protect all the parties litigant before it, and will doubtless interpose such protection whenever it may become necessary. But the mere preference of one mode of pleading over another, both being legal and proper, cannot oust the attorney-general from his proper position in this case. It does not appear that there is any sufficient cause for sustaining this motion. All the parties before the court have their respective rights. All can be heard in their maintenance, and all will be protected in their prosecution.

On the 2d day of February, the parties, by their counsel, were again in court, when Mr. Arnold asked leave to file the the following motion:

[Title.'] Supreme Court, .December, A. D. 1855: “And now comes the respondent in the above entitled suit, by his attorneys, Messrs. Arnold, Orton and Carpenter, and moves the said court to quash the summons issued herein, and to dismiss the same and all proceedings herein, for the .reason that the court has no jurisdiction in the premises.

J. E. ARNOLD, ] H. S. Orton, j- Att'ysfor Respondent” Mat.'H. Carpenter, j

The motion whs filed, when the counsel for the respondent requested the court ‘’to grant the term of thirty days for the preparation of the argument of the motion, which was objected to by the counsel for the relator, and the argument set down for the 11th day of February.

On the 11th day of February the argument of this motion commenced, and was argued at great length by Messrs. Carpenter, Arnold and Orton for the motion, and by Messrs. Eandall, Howe and Knowlton in opposition. It was desirable to report a synopsis of the arguments of each of the counsel who took part in the discussion, and to that end they were severally requested to furnish a synopsis for that purpose ; Mr. Carpenter and Mr, Howe have done so, but none other.

Mr. Carpenter contended that the proceedings should be .dismissed for want of jurisdiction. This court is called upon to consider whether it has the constitutional power to„ render a judgment of ouster and eviction against the chief magistrate of the state, and contending against this power, the following propositions are urged:

1. The three departments of the state government, the legislative, the executive and judicial, are equal, co-ordinate and independent of each other; and that each department must be, and is the ultimate judge of the election and qualification of its own member or members; subject only to impeachment and appeal to the people.

2. That this court must take judicial notice of, who is governor of the state; when he was inaugurated; the genuineness of his signature, &c.; and therefore cannot hear argument or evidence upon the subject. That, who is rightfully entitled to the office of governor can in no case become a judicial question; and

8. That the constitution provides no means for ousting a successful usurper of either of the three departments of the government ; that that power rests with' the people: to be exercised by them when they think the exigency requires it.

The subject opens before us a vast field of elemental thought and research, taxing history and political philosophy more than, municipal law. All modern governments are the result of experiment ; and all the blessings they secure, flow from improvements in the science of government, from time to time suggested by observation and experience. The writers upon political economy who are most esteemed, have but followed in the train of events, faithfully recording the details of history. Even our own government was no bold original conception, but simply the reducing to practice the wisdom of the past. All the restraints of power our system contains, had been attempted — sometimes with, and sometimes without success — by the whigs of England. The violence of factions (that often fatal -result of popular governments) as experienced in England, during the wars-of rival Roses, had suggested to her Parliament, many, indeed most of the safeguards which to day we rely upon to keep power within bounds. It is the highest praise that can be bestowed upon -our system, that it is no schemer’s dream, but the practical wisdom of a practical age.

The revolution of 1668, in England, had awakened the keen est discussion of the fundamental principles of government, by the greatest statesmen the British empire ever produced. The minds of men had been long directed to the methods of polity; and the most elaborate treatises upon the science of government, and particularly upon the relations of governors and governed, had been given to the world. The theories espoused by the whigs in that discussion, the right of the people to cashier their rulers, was learned by all our statesmen, and the sharp tyranny practiced upon the colonies had prepared the hearts of our people to receive it with great joy; The declaration of independence, severing our connection with the parent power, transferred what writers call the sovereignty, to the respective colonies. And in the constitutions of the several governments they established, the people carefully avoided the hazard of departing from established institutions, beyond what was absolutely necessary.

One axiom laid down by all writers of that day, illustrated by all history, and as true now as then, is that power tends to corrupt those who possess it, and the consequent necessity of prescribing its arrogance with something more than paper limitations and written constitutions. To those who now claim that power is bestowed upon governments and its officers only upon the charitable belief that it will not be abused, a few quotations may be of service.

“ Political writers have established it as a maxim, that in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have ho other end, in all his actions, than private interest. By this interest we must govern him, and by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good. Without this, say they, we shall in vain boast of the advantages of any constitution, and shall find, in the end, that we have no security for our liberties or "possessions, except the good will of our rulers; that is, we shall have no security at all.

“It is, therefore, a just •political maxim," that every man must he supposed a knave ; though, at the same time, it appears somewhat strange, that a maxim should be true in politics which is false in fact. But to satisfy us on this head, we may consider, that men are generally more honest in their private than their public capacities, and will go farther lengths to serve a party, than when their own private interest is concerned. * * * When there offers, therefore, to our censure and examination,any plan of government, real or imaginary, where the power is distributed among several courts, and several orders of men, we should always consider the separate interest of each court, and each order; and if we find that by a skillful division of power, this interest must necessarily, in its operation, concur with the public, we may pronounce that government to be wise and happy. If on the contrary, separate interests be not checked, and be not directed to the public, we ought to look for nothing but faction, disorder and tyranny from such a government. In this opinion I am justified by experience, as well as by the authority of all philosophers and politicians, both ancient and modern." Hume's Philosophical Works, Vol. III, pages 39 and 40.

“Moralists have embraced different systems respecting the origin of moral evil, and the natural disposition of man as affected to virtue and vice. Political writers have uniformly agreed. Prom Machiavel to Dr, Price, all have asserted, or admitted, that in a political character, when intrusted with power, man is totally depraved-, wicked and corrupt; that in power, the utmost perverseness is inherent in his very nature; that he is never good, but through necessity.' Hence mutual checks, restraints and opposition of powers are found necessary to guard against the oppression of rulers.” Ghipman on Government, 44.

Montesquieu says: “ Constant experience shows us that every man invested with power is apt to abuse it. So endless and exorbitant are the desires of men, that 'they will grasp at all, and can form no scheme of perfect happiness with less.”

The English government, which is in substance a republic, though a monarchy in form, furnished to our fathers the model of our republic. They looked to its constitution, and to its history ; changed what could be amended, guarded against its abuses, and established their own government, a republic in form and fact. They knew very well how the liberties of England had been preserved; and that their only safety was in the division of power among different courts, and different orders of men. The commons were at first compelled by the king to attend his court, to enable him to balance the great power of his lords and barons. Subsequently, the king and commons, the king and lords, or the lords and commons combined could con* trol the state, until in 1688, by the remodeling of the English constitution, the commons became the prevailing power in the government. The patriots of our revolution abhorred titles of nobility and arbitrary distinctions among the people; they had no desire for a king and nobility ; and hence they had to resort to some other device to effect the check and control of power. This they endeavored to do, by dividing the sovereign power, or that portion of it which is represented by the government, among three independent co-ordinate departments. The kingly power, with certain specified exceptions, under the less offensive name of executive power, they conferred upon the president. The legislative power, with like exceptions they bestowed upon two bouses of congress, which like the lords and commons of England, were to constitute one legislature. And the j udicial power, was conferred upon a court independent of both the other departments.

The proposition that our government consists of three independent and co-ordinate branches, will not be questioned, as an abstract proposition. But the question will here be, what are the consequences of this division of power; this existence of co-ordinate authority ?

It has grown common of late for writers and speakers to lose sight of this práctical division of power, and to represent the three departments as mere agents of an incomprehensible, undefined something, which they call the law; which is to be declared by this court, and to which, when thus declared, all departments of the government are bound to yield implicit obedience. Sometimes it is said, sovereignty is with the people, the law is the will of the sovereign, the court declares the law; therefore, the courts are above all that is subject to the law; and hence the governor’ must yield obedience to the court. All this jargon comes from confounding the rights of the people wider the government, with the right of the people to overthrow the government. The sovereignty of the people, is to a politician, a sweet morsel; to a lawyer and judge, an unmeaning and senseless sound. The sovereign is above the law; his will, changing a thousand times a day, changes the law, as often. The sovereign can do no wrong, for bis actions form the standard of right. The people, under a government, have none of these attributes of sovereignty. The people establish the government, and in so doing, part with thei'r sovereignty, and the government, when established, is as completely sovereign as Alexander is sovereign in his dominions; and the sovereignty of the people under a government, is a fiction. “We have said that sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in everything as he pleased, according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign authority; it frequently intrusts it to a senate or to a single person. That senate or that person is then the sovereign. Vattel, eh. 4, § 38. For instance, suppose Wisconsin contained but one thousand souls, under our present constitution. A. is indicted for murder, tried at the circuit, found guilty and brought up for sentence. The thousand souls constituent, the people of Wisconsin, come to the bar of the court, and pray the judge not to pass sentence. The judge refers them to the law, which, until repealed or changed, is the standard of his duty. They reply, “ We are the people, we established this government, made this law, and elected you a judge to administer it. You are our agent, we are sovereign, our-will can dispense with the law.” These arguments would certainly not deter a faithful judge from passing sentence on the prisoner; and if they should, the fickle multitude would speedily punish the weakness which Consulted temporary popularity instead of duty. Again, suppose our legislature should, in defiance of the constitution, pass a bill of attainder. The governor proceeds to execute it, and this court pronounce it constitutional. Such proceedings would justly exasperate the people. They would elect a different legislature, governor and court., But suppose the new legislature will not repeal the law, the new governor will execute it, and the new court declare it constitutional. What would the sovereignty of the people avail them? Some one will answer, they -would resist. Precisely — they would overthrow the government. In this sense the people are sovereign; so are the subjects of Alexander sovereign in the same sense. This right of the people, (which I am by no means trying to controvert), is the right of might; the law of the strongest. And the serfs of Russia have an equal right with us to exercise it — and are therefore as truly sovereign, as the people of the United States. The government, while it exists, is sovereign, and the people are subject. The courts of law, a constituent part of the government, are bound to disregard the will of the people, unless it be expressed in the constitutional mode. And it is one of the chief objects of the people in forming a government of any kind, to place the exercise of the delicate functions of government beyond the reach of every caprice and changing humor.

It is common to hear government spoken of as a sentient being, and the executive, legislative, and judicial departments, as so many members moved by one all-pervading impulse. But this is only when theory triumphs over common sense, and speculation denies the fact. Government, aside from those who administer it, is merely a creature of the fancy, and is as impotent to any practical end, as would be the laws of gravitation with no object for them to attach to. Put it in what pleasing disguise you will, man must govern man. And in framing a government, the problem to be solved is, how can man be so checked and controlled, as to exercise power, and not abuse it ? To bestow the supreme power upon any man, or any one set, class or sect of men, is fatal to liberty; and it is only by dividing the supreme power, among different classes, or different departments, that liberty can be preserved. This was one of the earliest discoveries in the science of politics, and dates back to the days of Rome. Millar, in his View of the English Government, speaking of the disorders incident to the intrusting of unlimited power in the ruler of a province, under the Roman government, says: “ For preventing these disorders, it was thought prudent to associate different leaders in the supreme power. * * The same plan was further extended by Dioclesian, who divided the sovereignty between two emperors and two Caesars. * * The Emperor Constantine rendered this division more permanent 'by erecting a great eastern capital, which became the rival, and even superior, in opulence and dignity, to that of the west. In conformity to such views of dividing the sovereignty among those bodies, who might otherwise be disposed to tear the empire asunder, subdivisions were made in those territories which had formerly composed a single province, and in each subdivision a chief officer was appointed, whose authority might serve to limit and circumscribe that of him who had the government of the whole. * * The direction of the civil, and that of the military establishment, were for the same reason separated, and placed in different hands.” Vol. I, p. 2, § 29.

From the days of Trajan to the present hour, this principle of division of’powers among rival possessors, has been gaining credit, and has now become-the great axiom of politics. Never was it more universally accredited, than among those who formed the American republics. In 1778, M. Turgot wrote a letter to Dr. Price, criticising one of our constitutions, and its divisions of power into different departments, in which he says: “ I see in the greatest number an unreasonable imitation of the usages of England. Instead of bringing all the authorities into one, that of the nation, they have established different bodies, a house of representatives, a governor, a council, because England has a house of commons, a house of lords, and 'a king. They undertake to balance these different authorities, as if the same equilibrium of ¡powers which has been thought necessary to balance the enormous preponderance of royalty, could be of any use in republics formed upon the equality of all the citizens; and as if every article which constitutes different bodies was not a source of divisions.”

This objection, if well taken, applied to our national as well as state governments; and to justify the necessity for this division of powers, this balancing and equilibrium of powers, Mr. Adams put forth his defence of the constitution, which as a general treatise upon the science of government, and a commentary upon our own, is regarded as an authority. What the dreaming, theorizing Frenchman regarded as a blemish, the great American patriot regarded as a crowning excellence. In his preface to that work Mr. Adams says: “Representations, instead of collect tions of the people; a total separation of the executive from the legislative power; and of the judicial from both; and the balance in the legislature, by three independent, equal branches, are perhaps the only three discoveries in the constitution of a free gov ernment, since the institution of Lycurgus. * * We shall learn to prize the checks and balances of a free government, and even those of modern aristocracies, if we recollect the miseries of Greece, which arose from its ignorance of them. The only balance attempted against the ancient kings was a body of nobles; and the consequences were perpetual alternations of rebellion and tyranny, and the butchery of thousands upon every revolution from one to the other. When kings were abolished, aristocracies tyrannized; aud then no balance was attempted, but between aristocracy and democracy. This, in the nature of things, could be no balance at all, and therefore the pendulum was forever on the swing.

“ It is impossible to read in Thucydides, his account of the factions and confusions throughout all Greece, which were introduced by this want of an equilibrium,, without horror. * * * Such things ever will be, says Thucydides, 1 so long as human nature continues the same.’ But if this nervous historian had known a balance of three powers, he would not have pronounced the distemper so incurable.”

I have quoted thus at length, to show that' something more was intended by the division of the supreme power into three parts than a mere separation of duties to be performed by different officers, in obedience to some superior will, to which all are supposed to bow. Another writer represents the government held in place by this division of powers, and this conflict of opposing forces, like a ship “ acted on by contrary winds."

According to these writers, the three departments of the government are not three mere agents of one sovereign will, acting in obedience to a common impulse;' they are represented as acting and re-acting upon each other — as manifesting opposition of will and collision of strength. They are equal, co-ordinate, and independent of each other.

“ The executive, legislative and judicial departments are coordinate, because each in the sphere of its powers, is equal and independent of the others, and because the three united make the government.” 1 Calhoun’s Works, p. 197.

This is the precise definition of two sovereign powers; and so the departments stand to each other. Neither can interfere with, or control the other, further than the constitution has expressly ■given the power to do so. And' the moment a power of interference or control to any extent is given, that moment, and to -that extent, the departments cease to be equal and independent.

This doctrine is laid down in Jackson’s veto message. Speaking of the constitutional question, and disposing of the argument •that the Supreme Court had settled the question, the president says: “If the opinion of the Supreme Court’covered the whole ground of this act, it ought not to control the co-ordinate authorities of the government., The Congress, the executive and the -court must each for itself be guided by -its own opinion of the constitution.” -And -again: “ It is as much -the duty of the House of Representatives, of the Senate, and of the president to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the •supreme judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that -point the president is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress, or the executive,- when acting in their leg. islative capacities, but to have only such influence as the force of their reasonings may deserve.” Vol. II, Statesman's Man., 772.

Equally decisive is the opinion of Mr. Wirt. One Cathcar-t -had obtained an allowance of money by the commissioners under the Spanish treaty, which, according to his memorial, he alone was entitled to. Other persons having an interest in the claim filed a bill in chancery, and enjoined the officers of the treasury department from paying to Cathcart. It was referred to Mr. Wirt, Attorney-General, 1st-: Whether, in any case, an injunction is binding upon the executive department of the govern* -ment; and -2d : If so, whether an injunction is binding upon the -officers of the treasury. Mr. Wirt says: “ On the first and second questions I am of the opinion that it is not in the power of the judicial -branch of our government to enjoin the executive from any duty specially devolved, upon it by the legislative branch of the government, or by the constitution of the United -States. If it were otherwise, it would be in the power of the judicial branch of the government to arrest the whole -power of ihe other -two branches. My opinion is, that -the judiciary can no more arrest the executive in the execution of a constitutional law than they can arrest the legislature itself in passing the law. It would be easy to show that the existence of such a power in the judiciary would place the existence, not only of the government, but of the nation itself, at the mercy of that body in every crisis, both of war or peace. It is therefore, in my opinion, essential to the government to assert for the executive this independence of action.” 1 Vol. Attorney-General's Opinions, 681.

If the three departments are equal in power and independent in action, does it not follow, as a corollary, that each department must judge of the election and qualification of its own member or members ? How else can the three departments be said to be independent? Is it not one of the most important characteristics of an independent state, that it elects its own. officers, and determines for itself -who is elected and rightfully entitled to hold and exercise office? Would the American people be independent of the crown of England, if the queen could remove our president and order a new election? If she was clothed with the ultimate power of determining whether the acting president was legally elected and otherwise qualified to hold his office, and, ascertaining that he was incapacitated or not legally elected, could declare his election void, and put a rival candidate in his place, how little short would this be of an unlimited power of removal ? How much do removals for cause differ from other removals, when the removing power is the sole judge of the existence of the cause? William A. Barstow is holding the office of governor under color of an election, has the records and seal of the executive department; has been recognized by the legislature, and is in the daily and hourly exercise of its duties; all its duties; approving or vetoing the laws which the legislature enact. It will not be contended for a moment that this court could control him in the discharge of a single duty pertaining to the executive office, because such power on the part of this court would be incompatible with the independence of the executive department. But it will be contended that this court, while it has not the power to control Governor Barstow in a single offi-oial duty, can nevertheless extinguish his official life, drive him from the executive chamber and put another in his stead. This absurd claim of power in this court should be sustained by some very powerful reasons on the part of the attorney general, before this court should adopt it. . I say reasons, for to require authorities would end the question at once; they cannot be found.

If the power of this court extends to entertain this proceeding, it extends equally in any possible state of things. If this court has the power to deeide who is governor in a clear ease, it has the pow;er to do so in a doubtful one. If it has the power to turn out a governor when the court are satisfied that he is not legally elected, then it has the power to do so when satisfied that he is legally elected. It would in one case be an honest, and in the other a corrupt exercise-of power; but the power exists in this court to evict any governor that ever will be elected, and put any man in his place. It is idle to say that the trial by jury is a sufficient check upon your power; for you alone can determine what evidence shall be given; and what is the legal effect of the evidence given. You can by your charge, cover the whole ease, and direct a verdict; and if the jury disregard your ■charge, you can set aside the verdict for that cause; and so on, until you put whom you please in the executive chair. Again, if you have this power over the executive, it is not less over the legislative branch of the government. It may be said no; the constitution provides that each house shall be the judge of the election and qualification of its members. But I will show your honors how you can send away the legislature with the governor.

First: The provision that each house shall be the judge of the election and qualification of its members, occurs where the constitution is defining the powers of the two houses, and trying to make each independent of the other. It is, not intended to limit the judicial power, but is saying that one house shall not interfere with the other. The provision may be read thus: Each house shall be, as against the other house, the sole judge of the election and qualification of its members. But suppose this is not a fair reading of the constitution, you may decide that it is, and then your power is ample.

Second: The provision is, that “ each house ” shall be the judge of the election, .&c. This pre-supposes a legal house; a majority unquestionably elected and qualified to judge of the election and qualification of the disputed members.

Take now an extreme case — for in examining a question of power no matter bow extreme the case — suppose by a mistake,, or by a sudden change in our election laws,, not yet published and understood, not a single member of the assembly was elected on the right day. Yet a member from every district comes; they all organize, declare their election legal, are recognized by the senate and by the executive, and go on in the ordinary forms, performing the ordinary acts of legislation. Here by supposition every member is an usurper, and of course all taken together are no better — for a hundred usurpations eould not cure one. Could yon summon them to your bar and declare their election void, and their seats vacant? If you could do so in this state of things, you could declare in any case that this state of things existed, and you could send home this legislature and every other one that shall assemble. And no matter how corruptly you decide, or how erroneously, if you have the jurisdiction over the persons and the subject matter, no one can question the correctness or the honesty of your decision, though everybody should know it to be- entirely corrupt.

Has the constitution clothed you with this unlimited power-over the other branches of the government ? If so, then yon have the power to usurp the whole government; and that, too,, without transcending your constitutional authority. You are the state, as completely as Louis XIY attested he was, and the three departments of the government are at your mercy. They depend for existence, not upon any vital principle of life breathed into them by the constitution, but upon your honesty alone — your honesty alone, for if you become corrupt, they are at an end. If this be your power, it is an insult to the commonest understanding to say that the three departments of the government are equal in power and independent in action.. They have no powers; they exist but at your mercy. They live not by drinking at the constitutional sources of power; they live only on the hope that the judges are good men and true ; that they regard their oaths, and confine themselves within amiable and good natured bounds. They have no shield to raise-in their own defence; they have no sword to strike at encroachment and usurpation ; they stand no longer erect like warriors,, they supplicate and plead like women for their own existence.. They have become, the lesser stars in. the constellation of the- state, and bumbly and hopefully revolve around their centre, the Great Triumviri.

But, it may be said, these evils result only when this court shall become corrupt. All power may be abused, but that is no reason why it should not be granted ; it is supposed the court will be just. I have already shown that no such thing is expected. They who founded our republic did not look to honest judges to keep the government in proper balance. On the contrary, they supposed you would become corrupted by power, and they, in one sense, relied upon such being the case; at all events, they expected and counted upon the fact, and hence concluded that as the three departments would be equally corrupted ; equally ambitious; equally jealous; equally struggling for the chief command and supremacy ; so would each department be equally powerful; perfectly independent; and so, as poison kills poison, it was thought that in the jostling, the balancing, the acting and re-acting of the different departments upon one another, the tripping and confusion in this scrub race of the three departments for the supreme power, the people would be able to keep all in check and in subjection. It was not to an equal division of honesty, nor yet to the immaculate character of this court, that they trusted. It was to the equal balancing and division of power'; it was that each one would check the other ; that sword would clash upon sword, and ambition foil ambition; this it was they'expected, and to this they trusted. It.was not that you would not abuse your power by usurping the other departments, but that you had not this power to abuse. The presumption that courts will not abuse their power, is the presumption of the lawyer and of the suitor under the constitution, it is not indulged in by the people in the formation of governments.

To show that the sweet confidence of judges in their own incorruptible character, is not shared to an equal extent by all men — I read from 1 vol. Jefferson, 81. “Before the revolution, we were all good English whigs, cordial in their free principles, and in their jealousies of their executive magistrate. These jealousies are very apparent in all our state constitutions; and in the general government in this instance, we have gone even beyond the English caution, by requiring a vote of two-thirds in one of the houses for removing a judge; a vote so impossible, when any defence is made, before .men of ordinary prejudices and passion, that our judges are effectually independent of the nation. But this ought not to be. I would not, indeed, make them dependent on the executive authority, as they formerly were in England ; but I deem it indispensable to the continuance of this government, that they should be submitted to some practical and impartial control; and that this, to be impartial, must be compounded of a mixture of state and federal authorities. It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit du corps, of .their peculiar maxim and creed, that ‘it is the office of a good judge to enlarge his jurisdiction,’ and the absence of responsibility, and how can we expect impartial decisions between the general government, of which they are themselves so eminent a part, and an individual state, from which they have nothing to hope or fear? We have seen, too, that contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead, and grapple, for a farther hold for future advances of power. They are, then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the states, and to consolidate all power in the hands of that government in which they have so important a freehold estate.”

■ There are certain powers conferred upon this court, for the faithful exercise of which the people trust only to your consciences and your honor, and to the terrors of impeachment when you may corruptly act. Within your department, you are like the executive within his; supreme, answerable only to the people. But while you confine yourselves within the prescribed bounds of your jurisdiction, you may become ever so corrupt; you cannot destroy the equilibrium of the government, nor usurp its powers, nor protect yourselves from impeachment. In an action of trespass, for instance, you may decide just what you please; yon may overrule, override, and put under foot every principle of law, disregard every mandate of the constitution, and outrage the common sense of all mankind. No department of the government can interfere with you; the executive cannot review your proceedings, nor reverse .them; the legislature cannot interfere with vested rights, nor can it any more interfere with vested wrongs. Even an impeachment of the judges would not reverse their judgment, nor correct their wrongs. When honest men should succeed to the bench, they could not annul the judgment rendered. In administering the criminal law, when acting within your jurisdiction, you are not less omnipotent. You may send innocent men and women to the rack, to the dungeon, and to the death; yet there is no power to review your decisions. Our lives, our liberties, all that we hold sacred and dear, we commit into your hands and your power, when we create you the supreme judiciary. But all this outrage and tyranny, this cruelty and wickedness, would never advance you a step towards supreme power ; never disturb the independence of the departments, nor mar the harmony of the government; but would consign you to everlasting contempt and infamy. This is our guaranty that you will not thus pervert justice.' The other departments may be at the same time devising or executing encroachments of their own, but they will start back with horror from yours, and they will impeach or remove you. You may tyrannize for a while, but the vigor of the other departments will sooner or later overtake you, and hurl you from the place disgraced by your presence. This supremacy, this absolute omnipotence in your sphere, is necessary to enable you to perform the judicial office, and protect us from harm, and secure us our rights. Power that must be granted we grant; but we check it, we bind it with limitations, we prescribe its arrogance and say to its pride, -“Thus far shalt thou come and no farther.” It will be thus seen, that the power we grant to you cannot usurp the government; it is a power to act on particular cases, and on individuals, but can never raise -you to the chief command, never enable you to interfere with other departments, never gain for you immunity from impeachment and removal.

I have shown that as a question of power, if you can remove Governor Barstow, you may remove any governor, and place your friend or servant in his place. Must I stop to show that such a power is inconsistent with the independence of the executive department? It seems to be self-evident; and I should not dwell one moment upon it, but that it is made the question before the court, and must therefore' be expected to encounter the whole strength of the opposite argument. It is intimated that counsel will argue a distinction between the power of removal, and the power to control the incumbent in his office before he is removed; that the former does not, as the latter, it is conceded, would annihilate the independence of the executive. A moment’s reflection shows the fallacy of such a distinction. As well say light is independent of the sun; the stream of the fountain; as say an officer can be independent of the power that can remove that officer. To state the proposition is to refute it. Consider the cases where it is designed to give one officer control over another. The president is charged with the executive administration, and in exercising the functions of executive power, the heads of the departments are the servants and clerks of the president. He is responsible for them and ought to have, and it is designed to give him, power to control them. How is this effected? By the power of removal vested in the president. The clerk of this court is subject to the court, and the court are supposed to control his actions. How do you exercise this control, but by the power of removal ? A sheriff is responsible for the acts of his deputies. How does he control them, and save himself from the ruin a reckless deputy might bring upon him ? By removal. How are all the officers from the highest to the lowest, subjected to the will of the people, but by the power of the people to elect successors, which is an indirect power of removal ? If, then, in all cases where our constitution and laws intend to give one officer the control over another, the object and design is accomplished only by giving^such officer the power to remove the subject officer; it is a libel upon the intelligence of our fathers — it is pronouncing all our constitutions failures, to say, that an officer may be subject to removal, and still be independent of such removing power.

It has been said, too, that although this court could not call the governor to its bar, it may call William A. Barstow, because he is not the governor. According to'this argument you obtain the jurisdiction to inquire whether Barstow is the governor or not, by deciding that he is not. This makes your jurisdiction to render any judgment depend upon the particular judgment you are to render. It is a jurisdiction to decide one way ; a jurisdic tion that may be ousted by the proof on trial, for if it turns out that Barstow is the governor, that will show your whole proceedings to have been coram nonjudice; and you cannot render any judgment whatever. Besides it is reasoning in a complete circle. You turn him out because he is not the governor, and he is not the governor only because you turn him out. So far as regards jurisdiction, any such distinction is nonsense. If your jurisdiction once attaches to the case, ábd to the parties, it is full, ample, complete. If you can decide that Barstow is not the governor, you can decide that he is; you can call the governor to your bar, and send him away, as you can call and dismiss any other suitor. You have dominion over him, governor though he be.

The unsound distinction taken between the governor and the office of governor, is the source of innumerable errors in this case. Manifestly there is no such distinction. In legislative and judicial bodies, there is a difference between the body and the members of that body. We may meet legislators in the street; but the legislature can only be seen during its actual and regular sessions, as a body. When its members separate, the legislature is temporarily extinct. So with this court. The constitution and the laws make a great distinction between the duties and powers of the court, and of the judges of the court. We may follow a judge to his lodgings, to his home; he is still a judge, may grant rules, and make orders, but he is not the court, nor any fraction of the court. Our constitution declares that the judicial power shall be vested in a Supreme Court, &c.; not in the judges of the court. Mark now the delegation of executive power. “ The executive power shall be vested in a governor.” The executive power is not vested in the office of governor, as the judicial power is vested in the court; but in the governor; and he is the executive, independent of times and places. In the city, or in the country; in the battle or at the banquet j in anger or in love; he is the governor still.

“The attribute to awe and majesty

wherein doth sit the dread and fear'of kings,”

the constitution has breathed into him; into him as a natural person ; a mortal man. And, except in the manner the constitution provides, he can no more separate himself from his official character, than he can depart from his soul. He is not an officer at- tacbed to an office, as a j udge to the court; but he is the executive department; the repository of executive power; and executive power goes with him and remains with him; and has no existence apart fi;om him. Who is the governor to day ? In whom does this power reside ? All agree, in Wm, A. Barstow. His approval or disapproval renders a bill passed by the legislature a law or a nullity. His pardon would to-day throw open our penitentiary; his order surround the capítol with citizen soldiers. He is the governor. And what are you called upon to do? To remove him from an office? No; but you are called upon to remove the executive power from him, and give it to another. Coles Bashford is asking you to annoint him with judicial oil, and breath into him official inspiration. Adam, formed from the dust of the earth, was dust still, till God breathed into him the breath of life, when he arose a living soul, and called God his creator. Coles Bashford is to day a common man ; but if he shall find that the Supreme Court with a breath of judgment, have invested him with executive power, and made his face “ terrible as an army with banners,” will he not hail you as his creators ? and will he not owe to you all that you have given him? and as you make him governor, and without you he would not have been, will he not be the governor of this court ? When you make a man governor that was not governor before, have you not created a governor ? I have endeavored to show, 1. That the power claimed for this court is a power of removal; and that the power of removal is a power of control; and shall we still be told that your transferring the executive department from A. to B., and subsequently if you please, from B. to 0., in a word, your unlimited power to create a governor at pleasure, disgrace him and appoint his successor, in no way interferes with the in. dependence of the executive department ? that you are only acting upon the .man, and not upon the officer ?

Mr. Calhoun likens the relations of the state governments to each other, to the relations between the different departments of the state governments. Suppose one state had the power of determining the election and qualifications of its own officers, and of the officers of every other state, would such a power in no way affect the equality of the states? Would they still all be equal, indep endent and sovereign, upon that charitable expecta tion that tbe chief state would not abuse its power ? Take Wisconsin and Illinois, and let us concede'to her to determine wbo were legally entitled to bold our offices, should we still boast of our equality with Illinois, our absolute independence of her, our sovereignty ? Or should we consider ourselves in leading strings and tutilage.

2. This court must take judicial notice of who is governor of the state; when he was inaugurated; his signature, &c.; and therefore cannot hear arguments or evidence upon the subject. That who is rightfully entitled to the office of governor can in no event become a j udicial question.

Prof. Greenleaf says: “They (courts) will also judicially recognize the political constitution or frame of government; its essential political agents, or public officers, sharing in its regular administration, and its essential and regular political operation and action. Thus notice is taken' by all tribunals of the accession of the chief executive of the nation or state, under whose authority they act, the genuineness of his signature, &c.” The trial of Governor Dorr, in Rhode Island, illustrates this principle. He was indicted for high treason in endeavoring to overturn the old charter government of the state, and was tried in March,. 1844. He offered to prove on the trial, in his defence, that the charter government had been superseded by another constitution adopted by the people, and that he had been elected governor under such new constitution, and did the acts complained of under and by virtue of his office. This evidence was rejected, and the court said: “The court must take notice officially of who was governor of-the state in 1842., If not, we should require the best evidence that the nature of the case admits, which is the certificate of the secretary of state, under the seal of the state.'1 Chief Justice Durfee charged the jury as follows: “It may b'e, gentlemen, that he really believed himself to be governor of the state, and that he acted throughout under this delusion. However this may go to extenuate the offence, it does not take from it its legal guilt. It is no defence to an indictment for the violation of any law for the defendant to come into court and say, ‘ I thought I was but exercising a constitutional right, and I claim an acquittal on the ground of mistake.’ Were it so, there would be an end to all law and government. Courts and juries would have nothing to do but to sit in judgment upon indictments in order to acquit or excuse. The accused has only to prove that he has been systematic in committing crime, and that he thought he had a right to commit it; and, according to this doctrine, you must acquit. The main ground upon which the prisoner sought for a justification was, that a constitution had been adopted by a majority of the male adult population of this state, voting in their primary or natural capacity or condition, and that he -vjas subsequently elected, and did the acts charged, as governor under it. He offered the votes themselves to prove its adoption, which were also to be followed by proof of his election. This evidence we have ruled out. Courts and juries, gentlemen, do not count votes to determine whether a constitution has been adopted, or a governor elected, or not. Courts take notice without proof offered from the bar what the constitution is, or was, and who is or was the governor of their own state. It belongs to the legislature to exercise this high duty. It is the legislature, which, in the exercise of its delegated sovereignty, counts the votes and declares whether a constitution be adopted, or a governor elected, or mot; and we cannot revise nor reverse their acts, in this particular, without usurping their power. Were the votes on the adoption of our present constitution now offered here, to prove that it was or was not adopted, or those given for the governor under it, to prove that he was or was not elected, we would not receive the evidence ourselves — we could not permit it to pass to the jury. And why not? Because, if we do so, we should cease to be a mere judicial, and become a political tribunal, with the whole sovereignty in our hands. Neither the people nor the legislature would be sovereign. W e should be sovereign, or you would be sovereign; and we should deal out to parties litigant, here at our bar, sovereignty to this or that, according to rules or laws of our own making, and heretofore unknown in courts.”

“ In what condition would this country be, if appeals could bo thus taken to courts and juries? This jury might decide one way, and that another, and the sovereignty might be found here to-day, and there to-morrow. Sovereignty is above courts or juries, and the creature cannot sit in judgment upon its creator Were this instrument offered as the constitution of a foreign state, we might, perhaps, undbr some circumstances, require proof of its existence; but, even in that case, the fact would not be ascertained by counting the votes given at its adoption, but by the certificate of the secretary of state, under the broad seal of the state. This instrument is not offered as a foreign constitution, and this court is bound to know what the constitution of the government is under which it acts, without any proof even of that high character. We know nothing of the existence of the so called ‘ people’s constitution ’ as law, .and there is no proof before you of its adoption, and of the election of the prisoner as governor under it; and you can return a verdict only on the evidence that has passed to you.”

Woodbury, J. (7 Row. U. S. Reports, p. 57), considering the numerous questions which are not of a judicial nature and tria-ble in court, says: “ This is no new distinction in judicial practice, any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented to preside on the bench in administering the laws between private parties, under a government established and recognized by other governments, and in full possession, de facto, of the records and power of the kingdom, but without feeling satisfied on inquiring as a judicial question, into its legal rights. Cromwell had ‘ gotten possession of the government,’ and expressed a willingness, 1 to rule according to the laws of the land,’ by ‘ red gowns rather than red coats,’ as he is reported to have quaintly remarked. And this, Hale thought, justified him in acting as a judge (Hale's History of the Com. Law, p. 14, preface). For a like reason, though the power of Cromwell was soon after overturned, and Charles the second restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being.”

Puffendorf thus defines the judicial power: “The office of the justiciary power is to hear and decide the causes of the sub~ jects, to examine the actions of particular men, which are represented as breakers of the law; and to pronounce sentence according to the legal penalties. * * * The right of judging as to the use and exercise of any part of the sovereignty, is understood to be implied or included in the respective part.”

The case of Luther vs. Borden et al. (7 How. R.), growing out of the Ehodc Island difficulties, comes in here to illustrate this doctrine. Martin sued Borden and others in the Circuit Court of the United States for trespass guare clausum fregit; plea, an insurrection — martial law — and that defendants did what they did, under and in obedience to a military command. Eeplication: that the establishment of a new constitution and the elec-of Dorr, governor, had supplanted the government, under whose authority defendant acted. This case clearly decides, we think, that these questions as to whether a particular constitution has or has not been adopted, or a particular person has or has not been elected governor, are all political and not judicial questions; that the courts must judicially know who is or who is not governor of the state. This court must recognize the de facto government, and must judicially know, then, that Wm. A. Barstow is such de facto governor. In this position of affairs, let us suppose that the pretender (I use that word meaning no offence or disrespect: it is the revolutionary translation of relator — and we cannot forget we have a governor for our client), — suppose he should grow weary of dethronement— weary of journeying up and down, like a lost, or banished and undone prince, — weary of the tantalizing visions of the pleasures of power, and the, to him, forbidden splendors of the capitol, — ■ suppose he should say to-day or to-morrow, I am governor of Wisconsin, and come what will, what may, I will exercise the office. He goes to the executive chamber, and demands the records and seals. Governor Barstow refuses to "deliver them to him. He endeavors to take them; is resisted by Barstow; each appeals to his friends — each calls upon the militia to aid him — one to support him in power, the other to raise him to the possession of what he says is his right. Here it' must be remembered, that if Bashford is to be the governor after you have declared that he is, he is equally so now ; unless it is claimed for this court that they can elect a governor by judicial proceedings. This court can only discover — it cannot create: it can explain and declare what already is — it cannot cause that to be which is not. If Bashford will be governor after you have declared him so, it will not be because you have declared him so, but because he was legally elected by the people in November 'last. If be was then legally elected (as be has taken the necessary oath), he is now, to all intents and purposes, the governor of the state; and this court by declaring that he was so elected, •and is the governor of the state, can give him no new right, no additional authority.

Suppose, then, that Bashford being resisted by Barstow, calls the militia, and a part of them rally under his banner, this puts things in an immediate state of war, and this, Bashford may do in five days. If this occur in the vacation of the legislature, the governor, or if you please, both governors, appeal to the president to suppress the insurrection." Governor Barstow has the certificate of election under the great seal of the state; he has been recognized as governor of the state by the legislative branch; they have received messages from him as governor; the ■bills they have, enacted, they have presented to him for approval. He is in possession of the records, the seal, and is to all intents and purposes a de facto governor at least. What would the president do? He cannot call a jury to try which is the governor ; he cannot refer it to any court; he cannot send for the Waupacca returns; he cannot presume that the board of state canvassers, three officers elected by the whole people of the state, have committed official perjury, in giving to Barstow the evidences of election. He must recognize Barstow as the governor, and send the federal troops here to extinguish the pretensions of Mr. Bashford. No one can doubt, what would be the president’s decision between Barstow and Bashford. The president would be compelled to recognize the de facto administration of the executive department of our state government.

Now while the troops of the federal government, were moving to the aid of the regularly constituted authorities, could this court sit here receiving proof and passing a judgment upon the same question.? Must the eommauder-in-chief be instructed as he leaves Washington, for theseat of war, to prosecute the campaign according to the rules and articles of war, or according to the judicial direction of the Supreme Court of Wisconsin? Must he no longer consult Yauban and Turenne, but confine his readings to the Wisconsin reports ? ' In the act of conflict, could a battalion be arrested in full charge, by a certified copy of the judgment of this court ? This is too absurd to talk of. Yet the jurisdiction of this court having now attached (if the court has the jurisdiction), could not be taken away nor suspended by the action of any department, nor of all the departments, nor of all the governments in Christendom.

Within the sphere assigned you by the constitution; discharging the appropriate duties of the supreme judiciary, hearing arguments and setting up and pulling down plaintiffs and defendants ; you would sit here calmly, while the contest was going on in another department of the government, and let either party succeed in the field, you would be equally protected, equally honored. ‘ But, departing.from that province, and assuming to- say who shall and who shall not be the head of another independent department, you instantly become embroiled and involved in this question, take sides in this strife of arms, assume to commend one force and denounce the other, and virtually to command both.

But to leave this branch of the argument, which savors more of the camp than the court, let us consider it in another point of view, and see if it does not lead to similar conclusions. If, who is governor.be a judicial question; then- it must' be tried and determined by the courts, as often as it is presented by the pleadings in any civil or criminal cause. Suppose Governor Barstow issues his warrant for the extradition of an alleged fugitive felon. The felon resists and arrests Governor Barstow, on a civil warrant for false imprisonment. Nothing is better settled in the law than that while the acts of a de facto officer are valid as regards the public, and third persons, they are void as a protection to himself. Whoever would protect himself by an office for any act done under it, .must show himself an officer de jure. 23 Wend. 490; 1 Denio, 574. To this action Governor Barstow pleads his office, and the proceedings on the part of the state and its governor, from which the plaintiff is alleged to have escaped. The plaintiff replies that Barstow is not governor. A jury are called to try the issue; they decide that he is not, and mulct him in heavy damages. Mr. Bashford then takes the matter in hand and issues a warrant for the same felon. He again resists and arrests Bashford, and the same proceedings are had to issue joined ; a regular unterrified democratic jury may be called; they decide Bashford never was governor; most of them have won money on the election of Barstow; they know that Bashford is not governor, that he is withheld from the office both by votes and upon general principles, so they mulct Mr. Bashford. As the first judgment would not have been an estoppel upon Bashford in the second suit, if decided against him, because he was not a party to it, for that reason it is no estoppel upon the plaintiff, in the second suit; for estoppel must be mutual. So that, who is our governor, or have we any governor, must, so far as the courts are concerned, be a question of fact forever, and the fact be forever undecided.

Suppose you decide that Bashford is the governor, and Bar-stow should surrender to him ; Bashford would be no better off than Barstow is now. The very first official act he performed, might be one, for doing which he would be a trespasser, unless protected by his office. * If it is a judicial question, open to hearing now, whether Barstow is governor, any citizen except Bar-stow perhaps, who is a party to this proceeding, could in the com- . mon action of trespass, before any justice of the peace, raise the question of Bashford’s right to the office of governor, and the justice would be compelled to hear and try it, and render judgment accordingly. There can be no doubt that this argument leads to this result. If you proceed with this hearing, it is not because you wish to do Bashford a favor, but because in the course of hearing and determining causes, you have reached one in which this question is presented ; and because you are compelled to adjudge upon it as you are upon any other legitimate subject of judicial inquiry. And when another suit shall, by its pleadings, present the same question, you cannot refuse to hear 'and decide it. To illustrate, take a subject where the right of the court to examine it is conceded — twenty different men sue the sheriff of Dane county, in as many different suits, for as inany different acts of trespass. In each one he justifies on the ground that he is the sheriff of Dane county, and the twenty suits are on the calendar together, and all for trial at the same time. After one was tried, and it was determined that the defendant was or was not such sheriff, the court could not refuse to try the same question over again in each of the successive suits; and in every suit after the first, the verdict might be different from the one which preceded it. If the right to inquire thus into the right of the governor to hold the office he is exercising, exists in this court, it exists because it is a legitimate judicial inquiry. The same must be conceded of the other two branches of the government. Why may not a quo warranto as well be issued to inquire into the existence of the constitution itself? If it be the supreme law of the state, it is so because it received a majority of the votes, at the time it was voted on by the electors. Why may not the certificate of the governor of the territory, that it had been adopted, be also inquired into ? It will be difficult for the court to stop its inquiry short of that, unless it also stops short of inquiring as a judicial question, into the right and authority of the de facto departments of the government. How is it with this department of government ? Do your honors judicially know you are the judges? May it not be proper for you to stop this inquiry, tfntil you ascertain whether you constitute the Supreme Court or not ? If you have no judicial knowledge of Barstow’s right to exercise his office, what judicial knowledge have you of your own official capacity ? You may judicially know that there is a Supreme Court, but do you know that you are the judges of it ?

In further illustration of the position that each department of the government is the sole judge of the election and qualification of its own member or members, and that the right of him or them who exercise either of the three departments cannot be inquired into by either of the other departments; let us press this inquiry; can we judicially inquire into your honors’ official character? Let us go first to the organization of this court. Suppose at the first election the canvassers had fraudulently given the certificate of election to J. Larabee, to Mr. Strong and Mr. Knowlton. They enter into the office, take possession of the seal and records of the court, and open a de facto court. J. Whiton, J. Smith and J. Crawford come and wish to contest the election. Could they come into this court and request Larabee, Strong and Knowlton to issue a summons commanding themselves to appear before themselves, to show cau^e why they exercise the office of justices of the Supreme Court? And could they then sit to hear and determine the writ ? Suppose they did, and hearing the proof, should be convinced that they were usurpers, would not that very conviction incapacitate themselves to pronounce any judgment in the case? So that after all, it would be left with them to stay and perform the office or not, as they should please. But, it may be said, this could be contested in the circuit. Yes, and this renders the whole claim more absurd still. From the circuit, appeal, or writ of error, lies here. Suppose the judgment of the Circuit Court should be adverse to those who were holding this court, would they vacate their seats and let the opposite party hear the exceptions taken below and reverse or affirm the judgment? But the fact that a Circuit Court may as well issue this writ, as this court, is an additional argument to show it cannot issue to the de facto officers of either branch of the government. It is little less than absurd to say, that while you are in the very act of pronouncing a j udgment reversing one of Doolittle’s judgments, he may stop your moutbs by deciding that you have no right to decide at all.

III. That the constitution provides no means for ousting a successful usurpation of either of the three departments ; that that power rests with the people, to be exercised when they think the exigency requires it. By successful usurpation I mean such an one as baffles and triumphs over all efforts which the department itself can put forth to overcome it.

If your honors, the judges of this court, were to be pulled from your seats to-day, you could assemble elsewhere, and punish with fine and imprisonment, as for contempt of court-But in this your honors would be your own protectors. You would pronounce judgment, and your sheriff would'call the militia, if need be, to lodge the usurpers in jail. But, should the usurpation so far succeed as to- gain possession of the records and seal of this department, be recognized by the sheriff, the clerk, and by the legislative and executive branches of the government, as the Supreme Court, become, in fine, a de facto tribunal, your honors’ judgments upon usurpers would fall as harmless as the bulls of the pope upon the bayonets of Napoleon. And no department of the government has the power to interfere and decide between the rival claimants. This necessarily results from the equality and independence of the three departments. The people could in the formation of the constitution have authorized each department to judge of the-qualification, and election of him or them, who exercise the other depart ments; or it might have made one department the sole judge for itself, and for the other two departments. There are doubtless contingencies in which such a power in one department would be very convenient, and the people might have conferred it. But then the departments would no longer have been equal and independent. Among the things a boy learns is, that he cannot buy the candy and keep his copper also. He can have either — not both. . This great truth is as tyrannical over manhood.as over boyhood — over nations as over individuals. They cannot create a government with three departments, and have them independent, and yet dependent; equal, and still have one the guardian of the others. There are reasons, doubtless, why one department should have such a power, but so are there dangers to be apprehended from it. There are strong reasons why-the three departments should be equal and independent, and yet like every other human- contrivance, it is not perfect, and evils sprung out of it.

Ohief Justice Whiton — Do you hold then, Mr. Carpenter, that the executive is the judge of his own election ?

Mr. Carpenter — Certainly, I hold that the governor is tlife ultimate judge of his own election and qualification; subject only to the people; that there is no other department of the govern* ment authorized to decide. I say there are arguments for and against granting to one department the right to judge for itself and for the other departments. The people of Wisconsin, in establishing a constitution, doubtless considered all these arguments pro and con; they decided; and of all the evils, they chose what they feared the least; they made the three departments independent, and now when the first inconvenience of this arrangement is felt, they clamor for this power in one department to judge for another. With equal reason the boy, when his candy is gone, cries for his copper.

It is said the constitution authorizes this court to issue and determine writs of quo warranto, and therefore you can hear this case; that it can make no difference to whom the writ is directed. But could you examine into the election or qualification of members of the legislature ? It is conceded you could not. There is an end, then, to the assertion that you can determine the writ, no matter who is defendant. Again: you have decided tbat you eannot compel tbe governor by mandamus to perform any executive duty. Why not? Your power to issue the writ of mandamus, is as unqualified as to issue the writ of quo war-ranto. The reason why you cannot compel the governor by mandamus, is that he is above the mandate of your writ, and may obey or disobey it, as he pleases, being answerable only to the people. It is the duty of the legislature to elect a senator to the Senate of the United States, when a vacancy occurs. Suppose they should neglect to do so.; could you compel them by- mandamus.? No; and yet your power to issue writs of mandamus is unqualified, and the legislature are, in terms, no more exempted -from obedience to it, than is the governor to •this writ of quo warranto. Every argument -that can avail here would equally prove your power to compel the legislature to elect a senator. The legislature is the -servant of the people, the creature of the constitution, and owes obedience to its provisions ; you are the oracle of the constitution and the laws; ■and have full, unlimited power to issue the writ o.f mandamus. “There is no one above the law, or authorized to disobey it; you are the only tribunal that can award the writ; it is a great wrong that we should be unrepresented in Congress, and there is no wrong without a remedy.”

'To all this you would answer that although the power to issue a mandamus was not limited as to the -legislature, yet, it was conferred on you to enable you to exercise the judicial power ; and that it was not ¿judicial use of the writ that was demanded. It was not asked as a writ to enforce a private right, but a political act, outside of your usual jurisdiction. This same answer suits this application as well. This is not a litigation about any private right under the laws, but an attempt to transfer -a branch -of the supreme power from one man to another. This has never been a judicial duty; and with one exception, in the 13th-century, which cost a chief justice of England his head, no judge has ever attempted to decide any such question.

It is opposed -to ordinary experience, and therefore, at -first blush, seems impossible that -there can be any dispute -between two men, and no place in the state to litigate it. But if-Bashford 'had-called out-the militia, and-the go vernor appealed-to the president, and conflict was -actually raging, we .should then under stand that the question bad swollen beyond the control of a court of justice. Still, the question would remain the same, the power of this court to try it, the same.

It is said, this power in this court must exist, or 6rov. Barstow returning from his dinner some day, may find his private secretary in possession of the executive chamber, the records and seal of the department, and claiming to exercise the office of govern- or. What, it is said, could the governor do ? What would Napoleon have done, if, returning from Austerlitz or Jena, he had found some jackanapes — strutting in imperial purple, and calling, himself emperor ? And what would he have done j gone blubbering into a court of justice, or would he have done what Jupiter did, call for Ms thunder ? That would not be a successful-usurpation — merely an unsuccessful and ridiculous attempt at it —which the power of the department could put down at once. If a man enter my house while I am asleep, or at church, must I go into court with an action of ejectment ?- No, I order him out, then throw him out.

OMef Justice Whiton. — Suppose, Mr. Carpenter, we should return from dinner to-day and find three members of the bar in our seats, who threaten to remain by force, could not the govern- or displace them ?

Mr. Carpenter. — Certainly not. This court, I should suppose, would not concede such a power to the governor. If the governor may come here and establish the right claimants, then he must have the right to decide who the right claimants are. If he can decide that you are entitled to the bench, and establish you there, then he can also decide that the three usurpers are the rightful judges, and put them there. You would assemble elsewhere, punish by fine, send the sheriff to call the militia to arrest your rivals. But if the sheriff and the governor adhered to the pretenders, not to you, then you would be powerless, except by appeal to the people.

If, however, it were necessary in such a case for the governor to come into this court to displace his secretary, the seats of your honors could be just as easily usurped by any careless adventurers,. and that would end the government at once. The constitution confers upon each of the departments, all the- power neces sary to protect themselves against outside usurpation; and against encroachments on the part of the other departments. The people have conferred upon the executive, all the power they thought necessary to protect him in office,, and they have not authorized this court to do any more. There is no resulting trust of power in this court; it is not set up to speak the voice of the people, and utter the people’s commands to the other departments of the government; but is commissioned to act and speak with the other departments, on terms of absolute equality and official brotherhood.

I have said the people could have conferred upon you this guardianship of the other department. Why did they not ? Simply because you would then have been as supreme as the czar of the Eussias, and “ with the sovereignty all in your hands,” to quote from C. J. Durfee. You could, indeed, in this case, have kept the other departments all right; but who would have kept you all right? Suppose you should wax ambitious; become corrupt; who would hold you in check ? Could the people expect that a department that was in your power, that must act as you prescribed the principle; and perform its constitutional duties as you should expound them; could they expect that a governor whom you could any hour declare illegally elected;, would check you ?

It is the natural, expected consequence of power to advance, to progress; it is a law, too, of the human mind; a principle developing itself in every department of human action. The ambitious school boy having wrestled with and thrown the boy next smaller than himself, wishes to try the boy next larger. The king who has conquered one neighbor, casts his covetous eye upon another ; until, at last, all at his feet, he weeps for another world to conquer. Who ever heard of any body politic or corporate, any institution or officer, willing to surrender any once acknowledged power or prerogative. On the contrary, how "often do we see them claiming powers to-day they renounced yesterday. The history of this court furnishes us with a charming illustration in point. Of course, I do not propose to criticise or question it; but I refer to the fact as it bears on the subject in hand.

Section 3, article 7, Constitution of Wisconsin, declares: The Supreme Court, exeept in cases otherwise provided for in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state; but in no case removed to the Supreme Court, shall a trial by jury be allowed. The Supreme Court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other (which of course means all other) original and remedial writs, and to hear and determine the same. See also Rev. Stat. p. 410, §§ 5, 6. The legislature here gave their construction to this part of the constitution, and say the Supreme Court shall have only appellate jurisdiction.

The first Supreme Court decided under this constitution, that the power to issue writs of quo warranto, &c., was a means to an end; was a power granted to enable this court to exercise its appellate jurisdiction and superintending control over inferior courts, and that this court could not issue these writs, and hear and determine the same, except it was for the appellate hearing and review of a suit before instituted in some inferior court. That decision would end this question. But this court have reversed that judgment; and have concluded that their duty to the people requires them to exercise more power than was at first thought they could do; that the power to grant these writs, and hear and determine the same, is, in the constitution, a substantive grant of power; and that this court may hear and determine any matter, of a judicial nature, which may be brought before it by writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original remedial writs, which I believe covers the whole field of litigation. According to this new rendering of our constitution; this section, taken down from its stilt walking style, and down into young American vernacular, will read thus: “ The Supreme Court shall never have original jurisdiction, only it shall have it in all cases whatever.”

It is not my purpose to express any opinion upon these conflicting decisions of the Supreme Court, as to its own power, nor say which is right. I mention the fact, however, that such decisions have been made for a two-fold purpose. First, as an excellent illustration that courts in expounding their own powers, are progressive. They do not relinquish powers to-day, they exercised yesterday; but they do sometimes claim powers to-day, they disclaimed yesterday. And second, to ask tbe court whether they think their decisions in matters within their jurisdiction binding on the executive? And if so, are their, decisions as to what is their jurisdiction, also binding upon the executive? If yea, if your decisions within your jurisdiction, are binding upon him, and if you are sole judges of the extent of your jurisdiction, then which decision is the governor at liberty to regard as law ? To-day you decide solemnly, on full argument, that you do not possess a certain power; the governor is bound to take you at your word; to-morrow you decide you have the very power you disclaim to-day. Is the governor still bound to bow to your exposition of your authority ? If so, is it not perfectly apparent that you are the state, and your power limited only by your good pleasure ?

They will tell you on the other side, that your honors form the great barrier of the people against usurpation; that the people are looking to you and holding in their wrath, which else might break out in civil war. That you are the guardians of the public safety, and the shield of the people; that the people will hail you — thank you as their deliverers. This is the most acceptable incense ever burned at the altar of official pride. How charmingly sweet must be the reflection, that the people must look to us for protection. The dear people, we.protect them; how they must love us. Ah! had we less confidence in your honors’ integrity, than we have, we should fear the infection might work, the flattery corrupt; it is so difficult to exercise power, and not long to exercise more. Even Paul could magnify the apostolic office, for the good of the Gentiles. “ We do this for our dear love of the péople,” has been the song that usurpation has sung in the people’s ears ever since Caesar -crossed tbe Rubicon to enslave them Eear not that the people are helpless, or that war must follow, unless you stretch your power to protect them, and avert it. The ballot box is a weapon quite sufficient to their purpose. If Goverrfor Barstow is fraudulently holding his high office, satisfy the people of it, and there will be no set of men found bold enough to gainsay their will at the next canvass. The people will remember him, and if satisfied that he has usurped the office now.

“They’ll whistle him off, and let*him down the wind, To prey at fortune.”

The people are not so helpless as those in power are apt to regard them. Every ballot that falls, silent as a snow flake falls in the valley at midnight, will reverberate through aH the labyrinths of power, and is a thunderbolt to a wicked ruler or an unjust judge.

In conclusion, then, I have endeavored to discharge my duty to this case and to the court, and have endeavored to convince the court that this motion must prevail. I hope I have succeeded. But however that may be, content that I have done my duty, I shall be content entirely. There is one, however, who is interested in these proceedings, who cannot blindly submit to whatever you may decide, who owes your honors no such official allegiance as binds us, your subordinate officers, to silence when you speak.

The governor is clearly of opinion at present, that this court’ has no right to entertain these proceedings; and he has no doubt they will be dismissed. Should he, however, be mistaken* in this expectation, should your honors take a different view of the constitution, and differently construe your own powers, the governor would then, out of habitual respect for this branch of the government, reconsider, step by step, the grounds of his conclusion. There we, his counsel, cannot follow him; there we shall not venture to advise him. In the solitude of official separation, in the quiet of his own thoughts he must commune with himself.

As it cannot for' a moment be conceded that in a conflict of power between the judicial and executive departments of thegovernment, that the judiciary has the sole right to judge the contest, or any better or further right than the executive, to judge of the relative powers of the two departments, the governor will, in reviewing the whole subject, carefully examine the decision of this court, giving to the opinions of the judges* in the language of President Jackson, “ only such influence as the force of their reasoning may deserve.” He will then be obliged to- determine for the executive branch of the government, 1st, whether this court can exercise original jurisdiction oyer any suit commenced by an information in tbe nature of a quo warranto ; and 2d, if so, whether this writ can, in any case, be directed to the executive of the state.

If he should, when assisted by the reasoning of the judges, come to the same conclusion, he may send us here to your honors’ bar again. Should he, however, be so unfortunate as to be compelled to- an opposite determination, he would be bound by his official oath of fidelity to the constitution, to regard the proceedings of this court as unwarranted by the constitution, and a gross usurpation of power; and to treat any judgment this court may presume to render therein as an absolute nullity. Whatever conclusion his excellency may arrive at, he will pursue such a course as a proper self respect and a just sense of the honor and responsibility of his high office shall dictate to him, relying upon the people to sustain him in a conflict with this court, which has been forced upon him.

Mr. Attorney-General declined at present to take any part in the discussion of the motion before the court.

Mr. A. W. Randall opened the argument for the relator, but has furnished no synopsis to the reporter, and he is therefore compelled to omit it.

- Mr. H. S. Orton followed in behalf of the respondent, for the motion. Although he has not furnished his argument to the reporter, yet from a few notes taken at the time, some points made in his argument may be stated.

He contended that the proceeding by quo ivarranto was akin to that of mandamus; that they were entirely analogous in their character, and the same end was contemplated by both; that this court has already, in ^repeated instances, decided that the writ of mandamus cannot issue to the executive. Such have been the uniform decisions of this court on all applications made for that purpose.

The leading proposition of his argument was, that the sovereignty of the state is lodged in the several departments of the government; that it was so under our constitution, and must be so, or it can exist nowhere. The sovereignty of the people, in a government like ours, is lodged in the executive, the legislative and judicial departments of the government; that these departments were co-equal, -co-ordinate, and independent; -that neither was inferior to, or dependent upon the other, but all three alike responsible to the people, from whom they each derived whatever power they respectively possessed, to be exercised in view of their own direct responsibility to the source from which they derived it.

This proposition was argued at length, and with great force, but it is impossible to pursue the train of argument and illustration without incurring the risk of failure in doing justice to the style, as well as substance of the argument of the counsel.

Mr. Orton further insisted that the executive is not an “ officer” in the limited and legal construction of the term. What is an “officer?” Blackstone defines it. Its definition is well known to the common law. An officer is a minister of the government, inferior to the government. Officers, strictly speaking, in this country, as well as in England, are subordinate to the government. The three great departments of state, are not offices in this sense, but are co-ordinate branches of the government. They are created by the constitution, by a nicely balanced and independent distribution of powers, and are in every sense co-equal and independent of each other.

The language of our constitution is, “ the executive poiver of the state shall be vested in an executive ” — “ the legislative power of the state shall be vested in a legislature," &c. These departments do not simply discharge official duties, but they exercise the great civil powers of the government, and in this respect they are not simply officers. The governor may be an officer of the state, but while he is so, he is something more, he is the executive of the state, and in him is vested the great and sovereign powers of that department.

That the writ of quo warranto would not go to the executive, because he is a branch of the government — he is a part of it, one of the three departments which constitute the government. The distinction will not hold between the individual and the executive, between the governor and department. If there were more than one person forming that department, the distinction might exist. A me mber of the legislature is an officer, but the entire legislature is not an office. One of the justices of this court is an officer of the court, but the court is not an office. It is so with the governor. He is the executive department, the executive branch of the government. The constitution says that writs of mandamus may issue to inferior courts. The analogy is perfect. It may also issue to inferior officers. But to a department, an independent and equal branch, it cannot issue.

The first and general definition of-the term usurpation is, the wrongful seizing of political power; the confined meaning is, the intrusion into a mere office. It will be perceived, that this alleged usurpation of the executive power, is a political, and not a j udicial question; a wrong, not to be redressed by the courts, who have uniformly held that political usurpations of this kind are to be left for redress to the judgment and action of the people. The words “ usurp and intrude into ” have no reference to a co-ordinate department of the government, but are used in reference to the offices under the government, or in other words in the confined and limited sense before mentioned.

Each department must be the ultimate judge of the qualifications and election of its own members. Each house of the legislature judges of the qualifications and-election of its own members. There is a judicial tribunal within the legislature. The house of commons has a committee — a judicial committee, which decides all contested cases. There is a legislative court. But if they decide wrongly, appeal does not lie to you. You’cannot review their action. The power is origipal and final in the legislature. Why was this power given to the legislature, and not given to this court ? Because in you the power exists inherently.

Footnotes

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[1]

Mr. Jas. H. Knowlton, followed for the relator, but as he also has failed to furnish a synopsis of his argument, nothing further will be attempted than a report of the points which he made.

This is a judicial proceeding, and so he should treat it, notwithstanding the menaces of resistance, under the full expectation that the judgments and decrees of this court are to be respected and executed hereafter, as they have been in time past.

The constitution, in providing that each house should be the judge of the election and qualification of its members, limited the power of this court in that direction. When no such limitation was made, it wás fair to presume'that the constitution included jurisdiction in its grant of general powers to the court. The opposing counsel seemed unable to distinguish between the individuals and their offices, but he could not believe there was so much difference in men in this state. We were proceeding against the respondent as an individual. When an individual became so inflated with an idea of his importance, as to consider he had a right to an office, and that he could not be distinguished from the office, he wished to mark such individual. This was worse than the doctrine of the divine right of kings.

The position assumed by the counsel for the relator, that the executive is the sole and ultimate judge of his own election and of his own qualifications, is incorrect. So far is this from true, that he is not even allowed to assist in canvassing the votes by which he was elected. If true, he might defy the judgment of a court of impeachment. He might plant himself on this doctrine, declaring himself the ultimate judge of his own qualifications, call out the militia, and defend his position. In that case suppose the lieutenant governor should file an information. Would not this court respect the judgment of the Court of Impeachment? Would it not see that that judgment was enlorced? He supposed this court had power to execute its decrees, and could call to its aid the military force. It was more important that there should be power to oust usurpers from high offices than from low. Mr. Knowlton proceeded to show that the judiciary and the legislature both possessed power over the executive in certain cases. The governor was a creature of laws. The province of this court was to decide what was law, and to see that such law was enforced. None of the departments is as absolute in its independence as has been contended by respondent’s counsel.

The constitution of the state created and defined the powers of the several departments, and the mode of accession of the incumbents thereto. That constitution declares that the man receiving the highest number of votes should be declared elected. A man cannot be canvassed into office against the votes of the people} and this court was bound to see the constitution enforced. The office of governor was a civil office, and there was nothing in the nature or magnitude of the office, to prevent the judiciary from acting to protect that office from usurpation.

Mr. T. O. Howe, for the relator ;[1] came here supposing that the determination of this motion rested upon two or three simple and ■clear provisions of the constitution of this state and of the laws framed under that constitution. He did not suppose it was to involve him in an elaborate review of the writers upon constitutional history, or of the essayists upon the theory of government. And, after a careful consideration of the arguments urged in ■support of the motion, he remained of the same opinion as at first — that this motion must be considered in the light of the constitution and the laws of our own state.

He would, nevertheless, remark briefly upon some points made by the opposing counsel. He could not foresee what weight ■might be given them by the court; and for that reason, as well ■as out of respect for the ability of the gentlemen making them, he would spend a little time, and but a little, in commenting upon what they had said.

He was surprised at the assertion of the gentleman who made the opening argument in favor of the motion, that he found no •authority in the books of his profession bearing upon this case; that the books usually found in a lawyer’s office all commenced this side of the question involved in this motion. He was surprised when the gentleman who followed upon the same side declared that he would have no occasion in his argument to refer to the constitution or to the laws of this state.

He supposed that all the power vested in this court was derived from those very sources ; and if the authority to hear and determine the information in this case be not' found in the constitution and laws of this state, he would not ask the court to look elsewhere for it. It was not derived from any history of constitutional law, nor was it granted by any other government than our own.

He denied, also, that this was, as had been claimed by the respondent’s counsel,, the most important cause ever tried in this court. The real case which is presented to this court is, who is entitled to discharge the duties of governor of this state and to receive therefor an annuity of $1,250 for two years ? There is, to be sure, a question of jurisdiction presented in this cause, and it is so presented as to call for its determination before the cause itself can be determined. But the same question is involved in every cause. Jurisdiction, indeed, is not, in every cause, denied by the pleadings, or denied by the argument; but the question necessarily arises in every case, and is affirmed by the court in every judgment it pronounces. Even if the opinion of the court makes no allusion to the question of jurisdiction, the very act of giving judgment is of itself an assertion, or at least an assumption, of the right to give that judgment. -And the question of jurisdiction is just as momentous in one case as in another, and t-he consequences of an erroneous decision of that question may be just as disastrous in one case as in another. If this court usurp jurisdiction of an action of assumpsit, it commits a wrong as flagrant as -when it usurps jurisdiction of the writ of quo war-ranto. In either case the true harmony of the government is disturbed, and the will of its framers is defeated. And he would add, that he had himself as little doubt of the jurisdiction of the court in this cause as in any which the court was ever called upon to determine. The most that distinguishes this cause from others, so far as the question of jurisdiction is concerned, is, that here the question is urged with, more ability and more marked pertinacity than is often observed in the conduct of causes in court.

The information in this cause alleges that the relator, Coles Bashford, is entitled to exercise the office of governor of this state, but that he is prevented from so doing by the usurpation and intrusion of the respondent, Wm. A. Barstow. The pending motion does not deny either of these allegations. It simply assumes that, if the fact be so, the court cannot so decide, and can give no redress.

But, while the motion admits the right, and the injury to that right as averred in tbe information, tbe argument in support of that motion has, so far, treated the cause as if it were an appeal to this court to depose the lawful governor of the state, or, where it has departed from that idea, it has affected to consider the suit as an attempt to destroy and absolutely to annul the very office which the relator seeks to gain. The arguments of the respondent’s counsel seem to present an almost inextricable confusion of two very distinct things. They have blended the person occupying the office with the office itself. They seem to have labored under the idea that the moment a man gets possession of the office of governor he was somehow dissolved in the office— held in solution in it — until by the analysis of revolution he shall again be deposited with the mass of the people. By their argument, there is no process for removing an intruder into the office of governor, except by revolution, by force and violence, or by the voluntary abdication of the individual himself.

It certainly would be most singular if the framers of our constitution had created an office so important as that of governor— had provided for conferring the right to that office by election— and had provided no mode for getting possession of it. but revolution 1

Revolutions have often been resorted to, for the purpose of overthrowing governments, but never to get possession of an office under a government. It may, indeed, be found necessary to employ force to put the relator in possession of his rights. If the intimations of the respondent’s counsel are to be relied upon, force will be necessary. But if so, the question remains, shall constitutional force be employed, or shall the relator be turned over to revolutionary force ? Alay he rely upon the force of the government to give him that place in the government to which he is confessedly entitled, or must he rebel against the government in order to expel a usurper from one of the offices under it? It must constantly be remembered, for the purposes of this argument, that the relator is de jure the governor of Wisconsin, and that the respondent holds the office only by usurpation, and the question to be settled is, how that usurpation shall be terminated. The- relator does not seek to .subvert the government, but only demands a constitutional right under it. Revolution, therefore, clearly cannot be his appropriate remedy. Revolu tion, if successful, would be as fatal to the purpose of the relator as to that of the respondent. While it might drive the latter from the office, it would abrogate the office itself, Whatever position the relator might assume in the state after a successful revolution, he would hold by conquest and not by election.

The relator therefore claims the employment only of the constitutional force of the state to install him in his rights. But the only constitutional force of the state is that vested in the executive arm of its government. The constitution makes it the duty of the governor “ to take care that the laws be faithfully executed.” Whatever right, therefore, the laws of the state give to any of its citizens, the governor must “ take care ” to enforce, and to that end may employ the whole or so much of the executive power of the state as shall be needful. Ordinarily, indeed, the governor is not required to act in person. Where the people frame the laws, the people demand obedience to the laws. Submission to the laws is therefore in all republics the first duty of the citizen.

So universally is that duty recognized, that, where the law has spoken in a given case, the ordinary police force of the respective municipal or judicial district has almost always been quite sufficient to enforce its mandates. But even that force cannot be applied to enforce a right against one in possession until the claimant produce higher evidence of his right than possession affords. Thus, if A. have in law a good claim to land in the possession of B., and he desires to dispossess B., he does not apply to the governor, or to any other executive officer, to examine his claim and eject the tenant, but he appeals to the judicial authorities to determine the validity of his claim, and, if found good, to grant him, in the name of the state, a writ which shall be a sufficient warrant to the executive power for dispossessing the tenant, and re-seizing the claimant. Not until the law is so declared, and so evident, does the command of the constitution go- to the executive power to see it “ faithfully executed.” Until then, the humblest squatter and the boldest trespasser are alike protected in their possessions by that compact which declares that “ no man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land.”

' Yet it bas been argued here, that the governor has, within his official sphere, the same right to interpret the constitution, and construe the laws, that the courts have. The authority of Mr. Jefferson has been invoked for that position ; and the respondent’s counsel have reasoned (perhaps not so very illogically) that if one who lawfully succeeds to the office is clothed thereby with the extraordinary authority of determining what laws he will see executed, therefore one who steals or usurps the office may determine how long the law will permit him to hold it.

TÍiere is as little doubt that Mr. Jefferson was mistaken in the proposition attributed to him, as that the counsel were in the application they had made of'it. • If it be true that the president of the United States, or the governor of this state, may in all cases determine for himself what laws he will execute, and what shall not be executed, he has that very power which Charles I sacrificed his life, and James II his throne, in the vain endeavor to secure — a power to dispense with the laws. On the 4th of July, 1776, the Congress of the United States, in the" most public manner and solemn form, and in the name of the people, charged the king of Great Britain with numerous acts of tyranny and usurpation, and among those acts they specified this: that he had “obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers." Is it possible that the same people, within twelve years from that time, voluntarily clothed their executive with power to obstruct the administration of justice by refusing to execute judgments judicially pronounced ? Is it possible that a governor under any of our free constitutions possesses that monstrous authority ? Of what possible utility are judicial tribunals, and the solemn, deliberate and cautious forms of judicial trials, if the executive power of the state .may, of its own motion, and without a hearing of parties interested, or with such hearing, revise their determinations, deny the validity and dispense with the execution of their judgments?

But, if it were true that the jpeople of this state had agreed to clothe their chosen executive officers with such terrible authority, it would by no means follow that one who should usurp that office, would thereby acquire the authority to legalize his own usurpation, and thus to bar the right of the lawful claimant; or, rather, to bar the right of him whom the people had chosen to wield that power.

The British Parliament has enacted sundry laws confirming the acts of such of her kings as have been deemed de facto and not de jure. But we are told such “ resolutions were made to avoid anarchy and confusion, because the common people cannot judge of the king’s title.” But no law has ever been enacted, to enable a king de facto to bar the right of a king de jure.

Indeed it is not pretended that the strange power we are considering has ever been conferred upon the governor of this state by express grant. It is claimed, on the contrary, to be inherent in the office itself and because that office is of itself one of the leading departments of the government. It is claimed that the .governor is endowed by the very fact of his being in office with an absolute and final power of determining, not for himself alone, but for the whole people of the state and for each department of its government, his own right to the office and how long he may remain in it. Not because of the supremacy of the executive department over the other departments of the government, but because of its equality with the other departments.

But it is certain that no kindred right or power belongs to either of the other departments.

The legislative department, for instance, cannot say, and never attempted to say, who is entitled to represent a given district in the Senate or Assembly. JEach house does indeed decide upon the qualifications and election of its own members; but neither house constitutes the legislature nor the legislative department. But even that is not the exercise of an inherent power; it is the exercise of a power judicial in its nature, but expressly granted to each house by the constitution; without which grant it would have gone to the courts, under the general grant of judicial power.

The judicial department of the government certainly does try and determine the election of members of that department. But each judge does not act upon his own case. Nor do all the judges or all the courts comprising the department act in conjunction. The judge of the Circuit Court for Dane county cannot try an information filed to test his own right to his seat. But -there is no doubt, if circuit courts Had general jurisdiction in, ■cases .of information, they might hear and determine one filed against one of the judges of this court. Their judgment would not necessarily be final, to be sure; but it would be as conclusive against the sitting, as against the claiming judge; as final upon the rights'of the respondent as upon those of the relator. And there is quite as little doubt that a convocation of all the judges and justices connected with the judicial department of the government would be utterly incompetent to remove an usurping justice of the peaee,' upon 'information or otherwise. And the reason is, that, as a department, they have no power, inherent or granted ; but when acting in their several tribunals, as supreme, circuit or county eourts, they have the powers expressly granted to those tribunals respectively. Trying the right to the office of judge is the exercise of judicial power. Judicial power is distributed by the constitution amongst those courts by the express grant of the constitution, and thus, and ■only thus, do the courts acquire jurisdietion of such questions.

But, while -the respondent’s counsel upon the argument, admit 'him to be a usurper, and deny that there is any power under the government adequate to determine that usurpation, they do not like to tell us that such usurped authority must be perpetual, and so, with a strange disregard to the consequences of their own •doctrine, they tell us that the people will terminate it at the next election; that, if the respondent decides he is entitled to the cffice when he is not, orpersists in holding an office which does not belong to him, that the people will turn him out. But how turn him out? They may elect another man for governor. Indeed, this is precisely what the relator claims the people did •at the last election. But if there be no power 'in the government to enforce the popular will as declared at the last election, what power will enforce that will two years hence? The constitution indeed says that “ the person having the highest number of votes cast for governor ” shall be governor. But coun■sel say that the person who usurps the office, holds by a title equally valid, and equally undeterminable by any power in the state. The respondent is now in office. He usurped it. He -does not acquiesce in the result of the last election. We have ne -reason ¡to believe he will be better satisfied with the .result of the next. If his doctrine prevails, he will be still in office .at the end of the present term; still denying the jurisdiction of the courts; still defying the power of the state. There can be no usurpation that is not in defiance of the people and of the constitution, and when forcibly persisted in, usurpation must be terminated, not by ballots, but by bayonets. The question still. recurs, shall the claimant of that office resort to bayonets to enforce his rights before or after his rights shall have been judicially indorsed ?

The opposing counsel have told us that never before was a court called upon to decide between different claimants to the chief magistracy — that amidst all the upheayals — the setting up and pulling down of dynasties in England during the last 1,500 years, they say there never has been an instance wherein the crown has been transferred by the potent magic of quo■ warranto',i Mr. Carpenter has told us in thrilling terms, of the shadowy forms that haunted Richard upon Bosworth field,, but more merciful than the relator in this case, he says, that in all their threat-enings and imprecations they never “ once croaked a quo war-ranto.” This seems like an admission of the weakness of their cause. It seems to indicate that nothing is so discouraging to the respondent’s hopes as a judicial determination of his rights — > that in a court of justice the respondent can find nothing so consoling as even the “ ghost of a chance.” He believed, however, that the respondent’s mental condition had been misunderstood by his counsel. He believed that the respondent would rather meet the process in this case, than one-tenth of the ghosts that thronged around the sleeping Richard.

Tt surely requires no argument to convince a lawyer of the entire want of analogy in the relations existing between the courts of this state and her governors, and those existing between the courts of Great Britain and her kings. Upon that point let t.hia suffice, that the king of England is the sovereign of England, while the governor of Wisconsin is only an officer under the sovereign state. The courts of Great Britain are the courts of her kings, and administer justice in the name of her kings, while the courts of Wisconsin are the courts of the state, and administer justice' in the name of the state. In England judges are commissioned by the crown, and until the reign of George III, they held office only during tbe pleasure of tbe crown, or tbeir offices terminated witbin six months after the demise of tbe crown. So tbat a judgment of ouster against the king pronounced in the courts of the king, would b e ipso facto a judgment of ouster against the judges who pronounced it. The judges.of Wisconsin are not commissioned by her governors. They are elecfed by the people and hold in spite of the governor, for a term specified by the constitution. The cause must be poor indeed, that is driven to such beggarly arguments for support.

But counsel have agreed at length upon the supposed equality and independence of the three departments of government. They have read from numerous political essayists in support of the position that the legislative, executive and judicial departments of the government are, or ought to be, separate, independent, coordinate and co-equal. There are indeed strong reasons why these departments should be separate and independent; but in fact no government ever existed in which they were wholly so. Writers mean only, this — that in all governments these three powers exist. They are the sum of every government; inherent in every government. Whenever the autocrat of the Eussias performs an official act, he exercises one of these three powers. It is essential in a republic that each of these powers should be deposited with a different tribunal or agency — when combined in a single individual the rights of persons are exceedingly precarious. Then the only hope>of the citizen is, that the depository may be wise, virtuous and just.

When distributed, there is a chance,'that if the judiciary be corrupt, the executive power may be placed in upright hands — ■ and vice versa — and that if both be corrupt, the immediate representatives of the people in legislature assembled, may hold both in check. The sultan of Turkey may register what arbitrary edicts he pleases — may apply them to the rights of his subjects as he pleases, and execute them or not as he pleases, and the security of the multitude depends upon the integrity of the individual. But in Wisconsin, if her legislature enact an oppressive law, the governor may veto it. Or if he approve, the courts may pronounce it unconstitutional. But if all combine to oppress the citizen, the citizens have only to combine to remove them all. So that here the security of the individual depends upon the in tegrity of the multitude. Such are some of the advantages of having these three great powers deposited with separate tribunals.

But when legal writers speak of the co-equality of these powers, they doubtless mean no more than that each is absolute in its sphere — that when the judicial power is appealed to, the whole judicial power of the state is put in motion, and so of either of the other powers — that each alike represents the sovereignty — that the judicial power declares, in the name and by the authority of the state, what the law is — that the legislature in like manner declares what the law shall be, and the executive in like manner executes the law when it is-declared. But to argue that these powers are equal to each other in any other sense, would be as profitless as to argue that lightning is equal to an earthquake. There is no similitude between them.

By reading promiscuously from various political essayists, counsel have confused themselves. They urge the importance of keeping the several departments of government separate and independent; and why ? Because we are told they thus operate as checks upon each other. But how can two powers, entirely separate from and independent of each other, mutually check each other at all? In practice it is easy to see they do so ; but that results not from their mutual independence, but from a certain constitutional dependence of one upon the other.

The reason why the relator has appealed to this court for the vindication of his rights, is this; he believed. that before the physical power of the state-could be .rightfully called upon, to put him in possession of the right now usurped by the respondent, he must present the highest and most conclusive evidence of his right known to the law. Judicial judgments be believed to be that highest species of evidence. His right must therefore be adjudicated by some court, and he deemed this the proper court. * * * But the independence of a department is a very different thing from the independence of a person or persons filling that department.

Tne orbits of Mars and Jupiter are independent of each other, but the orbs themselves mutually act and re-act on each other, and it is only by that mutual and constant re-action that each of the planets is preserved within its own sphere. It is something so witb the leading departments of government. No matter who the individual may be, or how dignified may be the position he occupies, if he come within the judicial sphere he is acted on by judicial power.

So, if either or all the members of the judiciary should interpose in the path of executive duty, the executive sword does not turn aside. Each power when moving in its own sphere moves with the whole authority of the state and against whomsoever and whatever may be found arrayed in opposition to it; and this is essential to the harmony of the system and to the integrity of the government. The entering of Mars into the orbit of Jupiter would create no more derangement in the planetary system than the refusal of the latter to move in its own constitutional sphere.

And before we become too nervously apprehensive of that “judicial usurpation” which counsel have inveighed against so eloquently, we will do well to reflect that their judicial usurpation is to be equally guarded against, and that if this court shall refuse to exert the authority it possesses, usurpation as certainly will ensue as if the court shall assume to wield a power it does not possess.

The counsel for the respondent complacently tell us that he has himself, by the marvelous virtue of the office into which he intruded, decided upon his own right and has thus legalized his intrusion. If this be so and he has that power, then he is no longer a usurper, but the rightful governor, and. the judgment of this court should be accordingly; but if he has not that power — if the decision of that question is as the relator claims, an exercise of judicial, and not of executive power, and if this court shall refuse to exert that power, then the respondent will not only have successfully usurped the whole executive, but also a portion of the judicial pqwer. The court will not, therefore, simply by denying jurisdiction of this cause, necessarily avoid all danger of usurpation, but only by deciding the question of jurisdiction aright; by exercising jurisdiction if the constitution gives it, and by refusing to take jurisdiction if the constitution withholds it, will usurpation be effectually prevented.

The relator, upon looking at the facts which transpired at the last election, ascertained, as he thought, that the highest number of votes given for governor was given for himself. He looked into the constitution of the state, and he read that the person who received the highest number of votes should be governor. He looked into the office and found it filled by the respondent.

lie reasoned, and reasoned correctly, as all men will say, that he had no more right forcibly to dispossess the respondent of an office wrongfully held by him, than so to dispossess him of a farm which he wrongfully held. He read in the ninth section of the declaration of rights, that “every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; that he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the law.” He saw, therefore, that he must seek his remedy under the very constitution which gave him his right. The constitution of the state gave this right; the power of the state must therefore afford his remedy. But to what power of the state should he a2Dpeal. He examined the constitution of the legislature. Clearly the law-making power could do nothing to give vitality to a right which the fundamental law already expressly declared to be his. He turned to the executive power; the only clause in the constitution of the executive department, which seemed at all suited to his purpose, was that which charged the governor to take care that the laws be faithfully executed. But he saw at the same time, that the executive power never moved to enforce the legal rights of individuals until it had legal warrant for so doing.

How, then, was he to obtain that legal warrant? He knew from immemorial usage that if money or goods or lands were wrongfully withheld from him, the judicial power would provide a warrant for its restoration. He examined the constitution of the judicial power. He found that the whole judicial power of the state, except that of impeachments, was vested in the Supreme Court, and certain inferior courts named in the constitution.

The constitution does not define judicial power, or specify the causes it may entertain. To the governor, specific duties are assigned, but to the judiciary, it has given in general terms, the whole judicial power of the state, with specified exceptions; and to the legislature it gives the whole legislative power of the state, with specified exceptions. It does not enumerate the causes which are within the jurisdiction of any one of the courts created by it; but among all the courts it distributes jurisdiction, both original and appellate, in all matters both civil and criminal, not excepted in the constitution, and not prohibited by law. Since this is a matter either civil or criminal, and since it is not excepted from the jurisdiction of the courts by the constitution, nor prohibited by any law, it is claimed by the relator, that some court has cognizance of it, and no one has denied but what if the cause is within the jurisdiction of any court, it is within the jurisdiction of this.

But it is said there is no precedent for this proceeding. It is said that never before has a court attempted upon information to adjudicate the rights of contested claimants to the office of governor. This is so. The reason is obvious: in some states the courts have not the power to adjudicate such questions — in this state, where the courts do possess that power, no occasion has before this occurred for claiming its exercise. But courts in all the states have adjudicated questions strictly analogous to this. The writ of quo warranto is known to the common law, and its office is, says Blackstone, to inquire by what authority a man who claims or usurps any office supports his claim, “ in order to determine the right.”

Our statute substitutes the proceeding by information for the writ of quo warranto, and authorizes it to be filed in this court without its leave, “ whenever any person shall usurp or intrude into, or unlawfully hold or exercise any public office civil or military.” Upon information the courts of this and of other states have decided upon the title to a great variety of offices, among which are included almost every grade of municipal offices — judges, treasurer of state in New York, and secretary of state in Illinois. The status of a governor is but that of an officer ; it is so denominated throughout the constitution, and by counsel throughout their argument. It differs from the other offices mentioned, if at all, only in degree, not in kind. It may be of higher dignity or greater importance ; but if more important, title to it is so much the more to be protected. When it was once decided that the felonious taking of a copper was lar ceny, it was never doubted but the felonious taking of gold was equally larceny.

And while the authority which the court is now called upon to exert is strictly analogous to that which it asserts every day, it is utterly unlike any authority which the constitution vests in either the executive or legislative departments, or which they ever attempt to exercise. Indeed so unlike is judicial to executive power, so broad and unmistakable are the distinctions between the two, that there is no more danger of this court clothing itself with executive power by mistake, than there is, that its members will clothe themselves in their neighbor’s garments.

Again, it is said the usurpation complained of is successful and there is no power in the state to redress a successful usurpation. To this it may be replied, that there can be no occasion to redress an unsuccessful usurpation. But let the principle once be established that a wrong cannot be redressed, simply because it is complete, and the next burglar who is indicted in this county will plead in bar that he had got into the house before the officer caught him — that he was entrenched in his castle before his crime was detected — that he had perpetrated a successful burglary.

Counsel have argued as if this was a proceeding to choose a new governor; They say if the respondent be ousted by the judgment of this court and the relator put in possession, he will hold the office not from the people but in fealty to the court. With equal propriety it may be said that all the land of which possession has been recovered by ejectment in this state, is held in fealty to the courts which gave judgment upon the right. But in fact the relator does not ask this court to put him in possession of the office he claims. He only asks this court to try and determine according to its long established and well known forms of procedure, his right to the office. When his right shall thus be determined he expects the executive power to enforce it. The power which decrees a man’s rights is one — the power which executes that decree is another. Strictly speaking, the courts have no power, but only authority. They grant writs — what comes after, is the exercise of executive power. The end -of judicial power is the awarding of process.

In spite of thq power of this court, I might pick the pockets of my friend Mr. Arnold, -in its presence, with entire impunity. True, if the act was complained of, the court might grant a warrant for my apprehension, if it was satisfied that my experiment resulted in the taking of anything which it is criminal thus to appropriate, If an executive officer could be found to serve the warrant, my personal movements might be embarrassed. And if no such officer would serve the warrant, the court might grant a warrant for the arrest of any officer refusing to serve it — the execution of which would be liable to.defeat upon the same contingency — that no one would execute it. Indeed, if the governor have, as is claimed for him, the right to decide what judgments shall be executed, and what shall not — picking pockets may not be a very precarious business at this juncture, provided always a judicious selection is made of the victims.

It has been strongly intimated that the respondent may disregard the decision of this court, if it shall be adverse to his pretensions. It is quite unusual for parties to inform the courts in which they are impleaded how they will treat their judgments. It is to be hoped the respondent has been misrepresented. But it is not for me to say he has been. It may well be that a man who confesses to have usurped the executive power of the state, will, if he be able, overthrow the judicial power also. But such considerations are not to deter the court from the discharge of its duty. This court is not responsible for the non-execution of its own judgments. And counsel have no right to throw out such intimations here. Their talk of civil strife is all out of place in this court. But were it not for this presence, I might be tempted to say to counsel, that even if the parties in this cause were to be remitted to the ancient right of kings — if they are to be told by this court, to resort, like the Richards. and the, Henrys of England, to arms for the arbitrament of-their rights — the relator has no just cause to fear the result of such a trial.

Mr. Arnold closed the argument on behalf of the respondent, for the motion, contending that the question before the court was a political, not a judicial question ; that the alleged usurpation in this case, was a political usurpation of the functions of one of the co-ordinate departments of the government; a"wrong, if such it be, to be remedied by political, and not by judicial power.

The first part of the argument of Mr. A. is necessarily omitted, for the reason that the same has not been furnished for report. From the brief furnished by him, however, the main points and positions made and argued, may be stated ;

1. In our system of government, the people are the source of all political power; and as a matter of course, all governments “ derive their just powers from the consent of the governed.” This is the'universally received American principle, and it is fully recognized in the first section of the “ declaration of rights ” in our constitution. See Federalist, chap. 39, 46.

In this sense the people are sovereign; but that is not the sovereignty which acts daily in the exercise of sovereign power. The people, as such, cannot act on all occasions. Hence the people establish what is called government, and invest it with so much sovereignty as they may deem proper; and this sovereign power being thus delegated to, and invested in the government, that government becomes what is called the sovereign state. But again; the people cannot act per capita in exercising the powers of government. It is done through representatives or agents. The basis of representation or agency is suffrage. The exercise of this is every man’s part in the exercise of sovereign power. This is the mode in which power emanates from its source (the people), and gets into the hands of different branches of the government — the legislative, the executive and the judiciary. Suffrage is the means of the delegation of power. Hence the importance and the necessity that the exercise of suffrage should be prescribed by law, as to time, place and manner, and that the results should be certified in some certain form, in order that every man may vote, and the result may be rightfully ascertained.

Another obvious principle is, that the people may not only limit their government, but may limit themselves. They may limit the former as to the extent of its powers, their distribution, and mode of exercise. They may limit themselves as to the manner in which they may alter, or change it, protecting it from the impulse of mere majorities. Also, as to who may vote, who may be voted for, and in various other ways. The expression of this delegated sovereignty and of these limitations of its powers, and the powers of the people, is termed the constitution.

2. Another important principle lying at the foundation of the American system of government is, that the different departments of the government, the executive, legislative and judicial, ought to be separate and distinct. This political maxim is an American axiom, and has been adopted in the formation of every national and state form of government since the declaration of independence:

By reference to the journal of the convention which framed the constitution of the United States, it will be seen that the first resolution adopted by that body was • that “ a national government ought to be established consisting of a supreme legislature, judiciary and executive.”

It is the celebrated maxim of Montesquieu, who if he be not its author, is justly distinguished as its great and leading advocate and teacher. His great model was the British constitution, which he seems to have regarded as the standard of liberty. It was reserved to the Union and to the states which compose it, to embody clearer conceptions and a more definite and practical application of the invaluable precept.

The great and difficult problem here has been, how best to secure the harmonious independence of each branch of the government, and yet to make each a check and balance upon the other. See the Federalist, chap. 47, 49; 2 Story's Com. on Constitution, p. 11 to 25.

So well settled and universally received is this principle, that some of the newer states, our own among the .number, have omitted to assert it in their declaration of rights. It is an obvious incident, or corollary to this principle, that the head or representative of each department of the goveinment should in its organization, whether by appointment or election, be independent of the control of any other department, and controlled only by the party or sovereignty having the right to appoint or elect.

In all our systems of government, the legislative department is elected by the great source of power, the people. In nearly all, so is the executive. In very many, perhaps most of them, the judiciary is appointed by one or both the other departments, in which case the appointment is subject to no control beyond the appointing power.

In this state the judiciary (unwisely I think) as well as every other department, is the immediate and direct creature of the people. And it would seem on the doctrine stated, that the elec* tion of each should be equally and alike a matter to be passed upon, aüd determined by the same authorized agents of the political power.

And, on principle, that any one department should possess the power to revise, reverse and annul the acts of such political agents, and of itself to decide absolutely the election of any other co-ordinate department and the title to its powers, is a strange and dangerous'incongruity. It is such an anomaly in government, such a solecism in science, that it ought not be found in our constitution, if it can possibly be avoided. By the constitution, the Supreme Court has, subject to certain limitations, general law and equity jurisdiction. It has the power to issue and to hear and determine the writ of quo warranto, and that, inherently from the constitution, and without regard to any law. See sec, S and 4, art. 7.

In fact it may be observed, that the jurisdiction of this court is complete, original and constitutional. It does not depend upon any grant of the legislature for its powers, nor can any act of the legislature alter, modify, or take away these powers. In this respect the Supreme Court, although organized by the act of the legislature, is in nowise different from the old. Its jurisdiction is wholly of the constitution, and not at all of the legislature. See sec, 4, art. 7.

• It follows as a necessary consequence that this court cannot directly and originally take any jurisdiction merely from any act of the legislature. Upon this basis I raise two propositions:

1. The jurisdiction sought to be obtained in this case is foreign to the organization and' general powers of the court — the subject matter of information is matter of political and not judicial in-quhy. It proposes to inquire into, and determine the manner and the result of the exercise, by the people of the right of suffrage, reserved to them to elect their representative or agent, who is clothed with the possession of another and independent, co-ordinate department of the sovereign government.

I say the court cannot inquire into tbe facts stated in tbe information, because they are facts wbicb prove (if they prove any' thing) tbe establishment of a new and different sovereignty in another and independent department of the government, and that is a question to be settled elsewhere and otherwise. Prom the .very nature of the case it is not a matter to be settled by j udicial inquiry. The claim is that the relator at the last general election was elected governor by a majority of the legal votes cast at such election.

What does the decision of this claim call on you to do? To ascertain how many votes were cast at such election; for whom they were east; to ascertain the qualifications of each, voter who cast the same'; to administer the laws protecting the purity of the ballot-box; to revise and pass upon the various canvasses, and the qualifications and conduct of the officers conducting the same; the legality of the returns, and to foot up and figure out the majority.

In short, it is required of you to exercise, nay, to usurp all these political and administrative duties, and finally as a board 'of state canvassers, to make a final count and declare a final result. It seems enough to state' such a proposition to show its absurdity.

This reasoning is not without authority. A-similar question arose in Rhode Island in 1844 on the trial of Thomas W. Dorr for treason. Opinion of C.J. Durfee. State vs. Dorr, 7 How. 1.

This case is analogous to the one at bar. The principle involved is the same. If Dorr had applied for a quo warranto setting up his claim dejure to the office of governor on the ground of his election under the people’s .constitution, and alleging that Gov. King was a usurper-into the office, the court must have refused jurisdiction upon the same grounds. And why, let me ask, did not Dorr pursue that course and file his information.? The Supreme Court of that state has as broad jurisdiction as the Supreme Court of Wisconsin. It was because no lawyer supposed that it was a case within its jurisdiction,

I am able to cite no further authority. It is a new case; and ■so far as my knowledge - extends, the first case in which this question-has directly arisen in the history of the American government.

2. The jurisdiction is riot granted by any terms of the constitution. It is not pretended that it is in express terms. But it may be insisted that it is embraced in the power to issue, hear and determine writs of quo warranto.

This, of course, leaves out of view the statute as to informa-tions, and raises the question of the real scope of the writ of quo warranto at common law. I assert that no instance can be found in which it was held to reach the title of the elective head of an independent department of the government.

These positions, if well taken, dispose of the whole matter; and here, perhaps, I might wisely leave it.

But it is claimed that the statute bestows the jurisdiction; and I observe that the papers in the case are made out in reference to the statute, and present a case under it. I remember, also, the flippant remark of one of the counsel for the relalor, when this question was first raised before the court, that this was a very simple question, and he was ready to discuss it at any time —that the only question was, whether the office of governor was a “ public office.” See Rev. Stat., page 636.

In regard to this law, I contend that allowing to it the scope now claimed, it does not relate to a rightful subject of legislation.

And because — ■

1. It is not on the general principle I have discussed, to commingle the action of the separate departments of the government; and having already vested the power to decide the result of elections (which is a political matter) in the hands of another and political body, it is not right to bestow the same power in another form upon another foreign and judicial department of the government. It is an attempt, in a mere political matter, to give to the judicial department power to revise and annul the action of the legislative or political power, where no question of the constitutionality of law or conduct is involved. This is foreign to the judiciary.

2. The law is unconstitutional and utterly nugatory. If, as I have urged, the jurisdiction be found in the constitution, if it exists at all, and it cannot be found there, then this law cannot confer it, and the court, by virtue of the law, cannot take it.

In other words, the powers of each department of the government are distinct, complete within itself, independent and ex- elusive, except as otherwise expressly provided in the constitution ; and the legislature can no more give this jurisdiction, or the court take it by virtue of this enactment, than it could in the ease of a law which should impair the obligations of a contract, or a law whieh should give a trial by jury in every case in the Supreme Court, or a law which should enable the court by a quo warranto to pass upon the qualifications of the members of the legislature.

In all these cases the constitution is conclusive and imperative. In the case at bar (as to the title of the executive) the constitution has made no provision; and it is a political power which, as I shall hereafter undertake to show, the legislature has properly disposed of. The court can never legislate. It can never exercise political power. It can never assume jurisdiction, not even by consent.

3. Supposing this law to be constitutional, I contend that the ■executive is not a “ public office,” civil or military, within the purview of the statute. The term ‘‘office,” is one of very ■comprehensive signification, and in its broadest and most popular acceptation, would include all persons who perform service, ■or do business within the state in any civil or military capacity. It would include not only the executive, but the judiciary, members of the legislature, senators and representatives in Congress, and all down to the lowest of the civil or military officers within the. state. And in point of fact, the term is thus used throughout the constitution.

This course of reasoning would prove too much, for it would embrace numerous persons holding public offices, who are admitted not to be within the operation of the law, and as to whom the constitution places a positive prohibition.

There must, therefore, ex vi termini, be some limitation, and there must be some definite class of persons holding public office, who are within the operation of the statute. Now offices, in the law, are public and private; and the distinction between the two is well marked, and characterized by their different employments.

An office, says Mr. Webster in his dictionary, in its primary signification, is a “ particular duty, charge or trust confirmed by public authority, and for a public purpose; an employment un dertaken by commission or authority from government, or those, who administer it.”

A public office, says Justiee Blackstone,, “ is a right to exercise a public employment and to take the fees and emoluments thereunto belonging.” 2 Black. Com. 86.

Again, he says, “ the king is the fountain of honor, of office,, and of privilege.” 1 Blade. Com. 271, 272.

Just in this connection, let it be remembered that of those-styled public officers in the constitution, the greater part are merely business men (so to call them) in the public service, such as agents, servants, contractors, commissioners, &c., &c. And the constitution recognizes this very distinction which I make, and lends force to the definition which I am about to propose. Const Wis., Art. 4, § 26.

With these lights and for other reasons which I shall proceed to assign, I define the class of officers intended by this statute to be, those who bold (or rather intrude into) any public office of the state, subordinate to and emanating from the government, whether by election of the people, appointment of the executive, or ballot of the legislature.

The very legal idea of office is that it is derivative — that it has a source from whence it proceeds — a power which creates it, and to which it is responsible. In this sense of the term, the kiDg is not a public officer, and he is never so regarded in the British constitution. Nor is the president of'the United States such an officer, nor is the governor of this state such an Officer, for they are original creations of the very sovereign power in the organization of government, and emanate directly from the constitution itself. They constitute the executive head or department of the sovereign government. And here let me ask on principle, why should not the same .power of the court which is invoked in this case, extend to the legislative department, and in fact become the final arbiter of the organization of every department of the government 2 Is it claimed that it was designed in this case as a check or an appeal to a disinterested tribunal to guard against partisan feeling, corruption or fraud ?

I answer, that all political writers agree, and all experience has shown it to be true, that while the executive is the weakest, the legislature is the strongest,, most overshadowing and dangerous department of tbe government. Tbe immediate representative of tbe sovereignty of tbe people, and clothed with almost undefined and unlimited powers, it is in that quarter that there is the greatest' danger of encroachment, and an undue predominance in the conduct of government. In many of our systems the legislature directly canvasses the votes of the executive, and all elective offices, and declares the result. In ours, the -legislature (in pursuance of article 5 of the constitution) has delegated that power to a certain body of the highest administrative officers of the state.

Let me ask, is there any more danger that they will be influenced by partisan feeling, corruption or fraud, than the members of the people’s court? In each case there, are but three men— in each ease high public officers — in each case acting under a similar oath.

And if in the one case, in a close and exciting contest the board of canvassers might, through partisan feeling or corruption, or fraud, strive to declare the election of one candidate for the executive, might not the judges on an appeal by a proceeding like the present, be impelled, by like motive, to strive to declare the election of the opposing candidate? What absolute advantage, therefore, or more perfect safety as against error or wrong, is there in the one case, more than in the other ?

' But this is not all; nor by any means the worst.- If frauds and illegalities in the election or in the returns, or canvass of votes, be alleged (as we well know is done in the present case), whether these frauds or illegalities relate to holding of the polls Or the conduct of the officers, or the return or canvassing of votes, or the act of casting the-votes, or the qualifications of the electors, they will necessarily involve issues of fact; and these are foreign to the jurisdiction of this court.

The spirit of our institutions requires that these should be tried and passed upon by a jury and ordinarily in jury of the vicinage. A jury is of the electors; and while a jury in one county of one political party may find a verdict one way against the evidence and law, a jury in another county of the opposite party may find a verdict the other way, equally against the evidence and the law — and thus the judgment of this court might be doubly wrong; by the misconduct of the judges, and by the misconduct of the jury.

But perhaps I am departing from the logical order of my argument. The proposition is that the governor is not a public officer of the state within the operation of the statute. It is conceded that in common parlance he is a public officer. So equally may it please the court, is a member of the legislature. They are treated and spoken of as such in the constitution and the laws. It is so not only in our state system, but it is equally true in our national government. In acts of Congress it has been legislatively used to comprehend the members of a representative and legislative body. See act of July 13, 1787 ; Sec. 10, 11, 12.

More particularly is this true of senators, whose functions extend occasionally to every department of government. And I admit in the argument that if an officer is excluded from office he may have a mandamus for admission or restoration, and that a writ of quo warranto will lie against one who usurps an office, to inquire by what authority he holds it. But will these remedies apply to a senator ? Clearly not. Nobody pretends that they do. But it is said, the constitutional power of expulsion, and to judge of the qualifications of its members, renders such proceeding unnecessary. But that is not an answer. Why do these constitutional provisions except that the senator is to be removed, censured or restored by methods adapted to the members of a supreme department of the government, and not by methods applicable to subordinate officers under the government ?

Says an able jurist, “the legislative department is, in all free governments, considered as the sovereign; and those who compose it cannot properly be classed with civil officers, the subordinate functionaries of the state.”

Again ; I propose to prove the distinction which I have drawn as to who are and who are not, public officers within this statute, and to illustrate the definition which I have given, by an argument based upon another branch of the constitution.

By section 1, of article 7, the power to impeach is conferred on the House of Representatives (no doubt meaning the Assembly), and the duty of trying impeachments is devolved upon the Senate.

The language is, “ the House of Representatives shall have the power of impeaching civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors.” And it is further provided that “judgment in cases of impeachment shall hot extend further than to removal from office, or removal from office, and disqualification to hold any office of honor, profit or trust under the state.”

Now can a member of the legislature be impeached? Can a senator be impeached ? Clearly not. It is not pretended; and yet he is, in the common acceptation of the term, beyond all question a civil officer of the state..

A brief statement of the reasons why a senator is not impeachable, may tend to illustrate the distinction I have drawn, and while it shows who are constitutionally subject to impeachment, will show also what civil officers of the state are subject to this statute. They are nowhere in the constitution made impeachable in direct terms. The governor and lieutenant-governor and the judiciary are so made, and also “ all civil officers of the state.”

If members of the legislature were impeachable the independ- • ence of the two branches would be at once destroyed ? The house would be enabled to drive a senator from his seat. It would arm a majority with the instruments of personal vengeance against their political opponents. It would render senators the judges in their own cause;

Again; the reasons which show the propriety of rendering the executive, the judiciary and the subordinate civil officers liable to impeachment, do not apply to these officers. In their case official neglect may be a pretext, while legislative firmness is the real cause of offence. Firmness in the discharge of his duty might subject a senator to impeachment. It is a power of ostracism in the hands of the most numerous branch, already sufficiently powerful, which would enable them to remove from his seat any member of the Senate who might dare to oppose a favorite measure. He is supreme, independent and sovereign in his legislative capacity; and refine as we will, this proceeding is aimed at his legislative character. The impeachment destroys his influence as such; and then common fame may be a sufficient foundation for this mode of proceeding.

But it is said that his functions extend to the executive and judiciary departments? I answer, this is merely an incident to his legislative character, conferred for conservative purposes by the constitution. Eor such he has no separate.source of power. His judicial and executive power emanate from the same source as his legislative. He is elected by a single district, to which alone he is responsible, and can reach his office in no other way. If he die or resign in the recess of the legislature, his vacancy cannot be filled by appointment under any power of the state, it can only be filled by an election in the district.

What judge or lawyer ever denominated the members of the House of Lords, the officers of the government or crown. Yet their judicial powers, as the court of last resort, extend to every civil action. True, they are subject to impeachment, because by the common law of England, all persons may be impeached, and for offences of every character. But in this country the power of impeachment has been limited in, all our constitutions, to certain persons and for certain offences. Then, certainly, the judicial character of the senator does not make him impeachable. And by similar reasoning, it may be shown that any participation he may have in the appointing power, does not subject him to this proceeding.

The governor is the executive of the state, and yet he has a part in the legislative power; he has a qualified veto upon every law. Yet, “ all legislative power is vested in the Senate and Assembly.”

But again ; if a senator, he is liable to be impeached, for the reason that he occasionally acts as a judge, and occasionally makes appointments, then it follows, that he is only liable to impeachment for what he does in his judicial or appointive character ; and thus, under our constitution, he might be prosecuted in one character, and disgraced and punished in another. And, further, if in these two attributes of his character, he is a civil officer of the state, and subject to impeachment “ for corrupt conduct in office, or for crimes and misdemeanors,” then you include offences in his legislative character, and thus confound all the distinctions of the constitution, as well as destroy the independence of the Senate. And what is to be the judgment? and what the .effect ? Will the judgment disqualify ? May he not again be returned as senator? Would the judgment remove him as senator ? Would it be a disqualification as to part of bis character, and not as to the other part ? But on this whole subject the constitution itself is sufficiently explicit. By sec. 12, art. 4, it is provided “ no member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil oíáce in the state, which shall have been created, or the emoluments of which shall have been increased during .the term for which he was .elected.” ' This provision contemplates :

1. That they.are not civil officers in the state, otherwise the language would have been, “any other civil office.”

2. That they may be elected or appointed to a civil office, but not one created, or with emoluments increased during their term.

And the following section (13) recognizes the same distinction under the government of the United States. Again; the members of the legislature have no responsibility but to their constituents, and what they do as legislators can nowhere else be questioned. But executive or judicial magistrates are responsible for all their acts in the ordinary course of criminal prosecution, as well as in the extraordinary course of impeachment.

And this distinction is no novelty. It existed in the articles of confederation, and it exists in the constitution of the United States, and in the constitution of most if not all the states. Indeed it is founded upon the very nature of our government. The legislature is the people acting through representatives. Over these the people have a complete control, and if one set transgresses they can appoint another, who can rescind all previous laws. But this is only the power to make laws. They have directly nothing to do with executing or expounding them. Hence arises the diversity in the modes of remedying the grievances which they may suffer by the conduct of their different representatives or agents. If a legislator acts wrong he may be expelled during his term. He may be rejected at the next election, and the laws which he has-aided to pass may be repealed. But if an executive or judicial magistrate acts wrong, the people have no immediate power to correct; and prosecution and impeachment are the only remedies. In this connection I refer to two provisions of the constitution which have an important bearing.

By section 8 of article 4, each house may expel a member, “ but no member shall be expelled twice for the same offence.” By section 6 of article 5, the governor is prohibited from granting pardons in cases of impeachment. In case of expulsion, the member is sent to the people, but if they choose to return him again he has a perfect title to his seat. In the case of impeachment the officer is dismissed and may be subjected to perpetual disqualification. In fact impeachment is with respect to executive and judicial officers, what expulsion is with respect to members of the legislature. As expulsions enable the people to decide whether they will restore the evicted member to their service, a conviction on impeachment enables the representatives of the people to decide whether the delinquent shall be partially or totally excluded from the honors and emoluments of office. And the difference in the two cases shows that the people in the constitution did not intend so much to guard against their own exercise of sovereignty, as against the abuse of their delegated power.

In these views, and in drawing the distinction which I have attempted, we are not without authority. By section 4 of art. 2 of the constitution of the United States, it is provided that, u the president, vice-president, and all the civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.” As early as 1798, in the celebrated impeachment of William Blount, then a senator from the state of Tennessee, after full argument by the ablest lawyers of the day, Messrs. Bayard and Harper, for the prosecution, and Messrs. Dallas and Ingersoll, for the respondent, it was held that the term “ civil officers ” did not embrace members of the Senate, but only the subordinate civil officers of the government who were appointed and commissioned by the president. And the impeachment was dismissed for. want of jurisdiction. The argument there used is equally good as to our state constitution, but, perhaps, not so pointed and irresistible, because under our system every department of the government as well as most of its officers, have been made elective. Under our system the governor is not clothed very extensively with the power of appointing and commissioning public officers, but he has in several instances the power of removal. As to all such they are no doubt public officers within the meaning of this statute.

From this examination it is apparent that while the governor, lieutenant governor, the judiciary and the subordinate civil officers of the government are impeachable, the members of the legislature are not, because they are not civil officers within the meaning of the constitution; and that neither the members of the legislature, nor the executive, are subject to proceedings by quo warranto, because they are not civil officers of the state, within the meaning of this statute. I will add further, that, although as I have said, the executive and the members of the legislature are civil officers of the state within the ordinary acceptation and use of the term, yet I do not remember any sentence of the constitution in which they are thus directly called. They are spoken of as “ the executive,” “ the members of the legislature,” “the members of the Senate or Assembly,” “the members of each house,” and “ their office,” and “ term.”

The third section of article 5,1 think, throws some light upon the subject. The jurisdiction is in this case claimed in a close contest, where the incumbent is alleged to have a small majority made up of illegal votes, which, if rejected, would leave him in a minority. Suppose it was a little closer, and was a tie, and it was claimed that there were illegal votes on each side; would this court have jurisdiction ?

This section provides, “ The persons respectively having the highest number of votes for governor and lieutenant governor, shall be elected. But in case two or more shall have an equal and the highest number of votes for governor or lieutenant governor, the two houses of the legislature at its next annual session, shall forthwith by joint ballot choose one of the persons so having an equal and the highest number of votes for governor or lieutehant governor.” And then it is added, “ The returns of election for governor and lieutenant governor shall be made in such manner as shall be provided by law.” The object seems to be, to reserve the organization of the executive department, to the people directly, or to the representatives of the people directly, or by such means as they shall by law provide for. that purpose.

3d. And, lastly, I remark that the legislature in pursuance of the constitutional provision above cited, has by law provided for the manner in which the returns of 'election for governor shall be made and canvassed. See chap. 6, Revised Statutes. And by reference to sections 74 and 75, it is apparent that the board of canvassers is clothed with certain judicial powers, and that their decision was intended to be final in the case. And further, to show that it was intended, and that it was regarded as a political matter affecting a sovereign. department foreign to judicial inquiry, I refer to the mode in which the first canvass was to be conducted as prescribed in section 11 of article 14 of the constitution. If between two candidates at that election there had arisen a contest growing out of alleged errors, illegalities or frauds, could this court have taken jurisdiction under this statute? If it could not then, I contend that it cannot now, and that the power then reserved to the legislature has been vested constitutionally in the board of canvassers. - The complaint in this case is, that the respondent “ usurps, -intrudes into, or unlawfully holds ” the executive office. And yet we have been sufficiently informed that he holds the office not only under colorable title, but under a certificate exactly in conformity to the law.

And in conclusion, if this court has jurisdiction in this case, is it not singular that no case has arisen or can be found in which it has ever been exercised ? The proceedings of mandamus and quo warranto are proceedings especially applicable to the possession, the right, and the acts of public office. How does it happen that in no instance has either of these proceedings ever been brought to bear in the case of the executive department of the government ? And it is in vain to attempt to draw a distinction between these proceedings, on which to found the jurisdiction of this court in the one case, while it will not lie in the other.

There is, and can be no such distinction as is claimed between the office and the individual who claims to hold it. The relator claims the right to it de jure; the respondent-is alleged to hold it de facto, but wrongfully. It is the right to the office that is in Controversy ; it is the office itself that is to be disposed of — and if the court has no jurisdiction as to mandamus, how has it by quo warranto ? The one commands the executive; the other makes or unmakes him. The one commands the officer; the other disposes of the office. They are both alike beyond the jurisdiction of the court—

“ Est boni judices ampliare justitiam non jurisdiotionem.”

Mr. A., on submitting his -written brief on the motion on the conclusion of his argument, remarked, that “ it has been prepared in haste and amidst other and pressing engagements. I feel that it is incomplete and unsatisfactory. But such as it is I submit it, and I submit this case with hopeful confidence.

“ In my j udgment this case is fraught with as much political and judicial importance as any case that has arisen since the or* ganization of our government. If in these sovereign and independent states there is reason to fear the overshadowing power of the general government, and especially the encroachments of the federal judiciary, then in each individual state there is reason to fear that some one department may acquire an undue weight and crush and overwhelm the government. And just so certainly as any one department attempts the subordination and the subj ugation of another, then there is danger either of revolution, or that the liberties of the people may fall with the integrity of their government.

“We want in this land no such ruins for the mournful admiration of posterity. The traveler who in the elder world gazes on the ruins of the Oolisseum or the Pantheon, may wonder and admire over the magnificent relics of a work of perfect art. In this land we have erected an edifice neither Doric, nor Ionic, nor Corinthian, nor yet Gothic, but purely American in its order, the most beautiful and perfect which this world has ever seen — the edifice of constitutional, American liberty. It is the work of the people. It is the hope of the people. It is the hope of the world for the emancipation and progress of our race. And I place the .mark of treason upon the brow of every man, be he of the north or the south, on the bench or off the bench, who dares to cast one spark of fire beneath the pillars of that glorious edifice. In this contemplation I have lost long ago all partisan feeling and all political ties. The platform of the constitution is the only ground of safety. I have endeavorod to plant myself there today, as I have always done before; and what I have said elsewhere to a jury I now say to the court, that I intend to stand there to the last, shoulder to shoulder with all those of whatsoever name or kindred or tongue who will swear by the oracles of our fathers and stand fast to the covenants of the Union!”

Mr. Howe — We propose to now submit the question of the power of the court to go behind the certificate held by Bar-stow. I do not wish to speak more than fifteen minutes to that question.

Mr. Orton — I do not suppose that at this stage of the case there is any intention to raise that question.

Justice Smith — It is so understood — the argument does not apply to that question.

Mr. Howe — In that case, the references in the argument to that certificate will of course be excluded from the consideration of the court.

By the Court,

Whiton, 0. J.

In this case the attorney-general filed an information in the nature of a quo warranto, on the relation of Coles Bashford, setting forth that the respondent held and exercised the office of governor of this state, without any legal election, appointment or authority whatever ; and that at a general election, held on the 6th day of November last, for the election of state officers, the said relator was duly elected and chosen governor of this state, and that ever since the seventh day of January, A. D. 1856, he has been and still is entitled to hold and exercise the said office; but that on the said seventh day of January, the said respondent usurped, intruded into, and unlawfully held and exercised the said office, and ever since, and still doth usurp, intrude into and unlawfully hold and exercise the same, &c. The respondent was required to plead to this information, and appeared and filed a motion to dismiss the proceedings, for the alleged reason that this court has no jurisdiction in the premises. The question which we are called upon to decide arises upon this motion. Before proceeding to con- aider the question presented, upon its merits, it may be well to determine what effect the motion has upon' the allegations contained in the information; and we are of opinion that the filing of the motion must be considered as an admission by the respondent that they are true.

The question then presented for ou-r consideration is, whether in case of the lawful election of a person to the office of governor and an unlawful intrusion into it by another, without color of right, this court has jurisdiction to entertain proceedings having for their object the removal of the unlawful intruder, and the establishment of the right of the person lawfully entitled to the office.

The counsel for «the respondent have contended that we have not this power for various reasons, and first, because it cannot be exercised without giving to the court the control of the executive department of the government.

It is contended that ©ur government is divided into three departments — the executive, the legislative and the judicial; that these departments are co-ordinate; that each is independent of the other, and that neither can -interfere with the other without destroying the harmony of the government,

- To maintain the position that -these departments of our government are thus co-ord-inate and independent, the counsel for the respondent read very much at length from the reported debates of the convention which formed the federal constitution, and from the debates of ¿he state conventions which ratified it, and also from the writings of eminent statesmen and jurists who have treated of the science of government.

But it must be apparent^ that, as the sovereign people of this state have adopted a written constitution, in which the powers of the government are distributed among the departments established, and which is the supreme law of the land, we must look to that instrument for the purpose of determining this question.

This constitution does vest the executive power in the governor. It also vests the judicial power in this court and in various other courts and officers. Whether in any instance a power which is properly called an executive power, is vested in this court, or in some other court, or whether powers which are properly called judicial powers are in some instances vested in the governor, by the constitution, we do not feel called upon to decide.

We have, in every instance in which the question has-come before us, refused to interfere with the executive or the legislative departments of the government, in respect to matters which are by the constitution intrusted to those departments, and most assuredly shall decline to take jurisdiction of this proceeding, if we cannot proceed without such interference. The department in which the constitution vests a power, must execute the power, and no other department can be allowed to interfere, without destroying the balance of the constitution, and producing disorder and confusion.

To show that this proceeding, if it resulted in the removal from office of the person who has obtained possession of the office of governor, would interfere with the executive department, the counsel for the respondent contended, that the person filling the office of governor had' authority to determine his right to the office. This position, if true, clearly shows that we are without jurisdiction, for if this authority is vested in the governor, most clearly we cannot take it from him, nor interfere with him in its exercise. But we have been unable to find any thing in the constitution, or in the nature of executive power, which can be relied upon to sustain this position. On the contrary, the constitution expressly provides (art. 5, sec. S) that the governor and lieutenant governor* shall be elected by the qualified electors of the state at the times and places of choosing members of the legislature, and that the persons respectively having the highest number of votes for governor and lieutenant governor, shall be elected.

It was not contended that the governor has the right to canvass the votes cast at an election, and to determine that he has received the highest number; but that in a case like the present, when it is admitted upon the record, that the person filling the office, obtained it by usurpation and intrusion, and without any legal right whatever, he has authority to determine that he has a right to the office.

It is apparent that this alleged authority is not founded upon the constitution or the laws, and can only be sustained by a re sort to unlawful force; we dismiss the subject, therefore, .from our consideration without further remark.

It was further contended by the counsel for the respondent, that a removal from office of the person filling the office of governor, and substituting in his place another person, would interfere with the executive department, for the reason that the person so substituted would be the governor of the court; that the court would in that case, elect or create the governor. We are not able to perceive how such a result can be accomplished.

As the case now appears upon the record, the respondent has no legal right to the office, and the relator has a perfect right to it, by virtue of the clause of the constitution above referred to. If the facts should remain unchanged, a judgment of ouster in this court against the respondent, and a judgment establishing the right of the relator, would not create a right in the latter, or destroy one which belongs to the former; their rights are fixed by the constitution, and the court, if it has jurisdiction of this proceeding, is the mere instrument provided by the constitution to ascertain and enforce their rights as fixed by that instrument. Its office is the same as in all controversies between party and party; not to create rights, but to ascertain and enforce them. The same argument would apply with equal force to an information in the nature of a quo warranto against a sheriff or any other officer. We do not think it well founded. It was contended further by the counsel for the respondent, that a judgment of ouster in this court against the respondent, and a judgment in favor of the relator, would interfere with the executive department, because it would transfer the office of the governor from the former to the latter.

We do not think this is a correct statement of the effect of a judgment of ouster, in cases of this description. It seems clear to us, that a judgment of ouster against the incumbent of an office in no way affects the office. Its duties are the same, whether the original incumbent remains in it, or whether another is substituted in his place. If a removal from an office by a judgment of ouster against the incumbent, would affect the office itself, so also, would a removal by the death of the incumbent or his resignation. In all these cases, we think the office is in no way affected. It remains as it was before the removal.

It was contended further by the counsel for the respondent, that this court has no jurisdiction of this proceeding, because the writ of quo warranto can only issue against officers strictly so called, and that the head of the executive department of this state, is not an officer in the strict and legal sense of that term. It was admitted by the counsel for the respondent, that this court has the power conferred upon it by the constitution, to issue this writ against any subordinate officer of the government, but it was denied that the governor in whom is vested the executive power conferred by the constitution, is properly and strictly an officer.

This brings us to a consideration of the nature of our government, and of the powers conferred upon it, and also upon the departments separately.

We regard it as a fundamental principle, that sovereignty resides in the people. The truth of this proposition is so obvious, that it will not probably be disputed by any one. But it was contended by the counsel for the respondent, that, although the peeple have vested in them, in the aggregate, the sovereign power, they have delegated portions of sovereignty to the various departments of government by the constitution, and as a portion of this sovereignty is vested in the governor, by that instrument he was beyond the reach of any other department of the government. We think this argument proceeds upon a mistaken view of the nature of sovereignty, and of the nature of the power delegated by the people to the governor in the constitution. As has been before stated, the people are sovereign, and it is proper to add that they alone are sovereign. In forming this government, they did not part with one jot or tittle of sovereignty; it resides in them and in them alone. Were it otherwise, had this government possession of sovereignty, i't would have the power to perform its functions without consulting the people, and could change its form without their aid; it could enlarge or diminish its power; it could, in short, do any act pertaining to the government, which unlimited power over it would enable it. to perform. But the people, when they-formed this government invested it with certain powers; they gave it such powers as they chose, and provided for the election or appointment of officers, agents and functionaries, to carry on its operations. They distributed these powers among various departments, giving to one department executive power, to another legislative power, and to another judicial power. They delegated also certain powers which cannot perhaps be considered belonging to either of the above-named departments, and provided for the election of officers to execute the powers thus delegated ; but in all this they did not part with their sovereignty; on the contrary,'they now have the power to destroy the present organization of the government, and to form a new government with such powers ks they shall please to confer upon it.

It must be apparent, from this view of the nature of the powers delegated to the various departments of the government, that none of them possess sovereignty; but, that they all have power granted to them, the nature and extent of which, must be determined by the constitution which confers it.

We will now proceed to inquire whether the governor is strictly and properly an officer under our constitution, and thus to determine whether the writ of quo warranto can issue to inquire by what authority he holds and exercises his office. The constitution provides (art. 5, sec. 1, 2), that the executive power shall be vested in a governor, who shall hold his office for two years, and that no person except a citizen of the United States and a qualified elector of the state, shall be eligible to the office of governor, or lieutenant governor. Article seven, section first, provides that the House of Representatives shall have the power of impeaching all civil officers of this state, and that on the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. It will be seen that his station or position is called an office, in the fifth article of the constitution, and that he is designated as a civil, officer In the seventh article of the same instrument.

Indeed, it appears, that unless he is a civil officer, as that term is used in the constitution, he is not liable to impeachment, as the only power given to the House of Representatives to impeach him, is conferred by the clause of the constitution above cited ; yet, it appears, by the strongest implication, that he is liable to impeachment, for it is provided, that on the trial of an impeachment against him, the lieutenant governor shall not act as a member of the court. We have shown that no sovereignty is conferred by the constitution upon the various departments of the government, but that power is given them in such measure as the people have chosen to confer it; and we are unable to discover any difference in the power so given. It is the same in kind, whether it is conferred upon the executive, the legislative or. the judicial department. It is the power to perform the appropriate duties of the department; and we see no reason for the opinion, that while some of the persons who exercise this power, and perform those duties, are properly and strictly called officers, others, who exercise powers of the same kind, are not properly so designated.

It was contended by the counsel for the respondent, that the question arising in this case, is a political one, and not properly cognizable before a judicial tribunal. We cannot view the question in that light. As the case appears upon the record, it is the intrusion of a person into a civil office, without color of legal right; and, although the office is of high dignity and importance, it is still an office created by the constitution, and it seems clear to us, that this court has the same power to remove from it a person who. has unlawfully intruded into it, that it has to remove an intruder from any other office, created by that instrument.

It follows from the views which we have been compelled to take of the question, that the motion must be denied.

The foregoing is not intended to be a report of Mr. O.’s argument, but is believed to. indicate the positions assumed by him, which were thoroughly and ably argued. — Reporter.

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Mr. Howe forwarded his argument as requested, which is here inserted, with the exception of a few unimportant portions, which, for want of room, have been -necessarily omitted.