Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1832-11-09

must have been perfectly well known TO the Congress Of
l1S9, and Is IL TO be believed, that il they had really in
tended TO provide for the exercise OF a power SO delicate
and transcendant, and the right TO confer, which was al
ready questioned, they would have omitted to do so in ex.
press terms! For one, | do not 80 believe.
These are, suceinctly, ssme OF the objections to the
present right Of the court to take cognizance Of the case
before us.
Now, how are these objections gotten over by the
judges who delivered the opinions Of the majority Of the
COURT Judge M'Lean says, that the language of the 10Th
scc,iun applies "indiscriminJtely TO criminal and civil
ca*es."-But he enters into no analysis OF the terms OF tina,
section he does not meet, nor notice in any way, the
points above suggested, probably because they did not oc-
cur TO him, and were, of course, not suggested by the
counsel who argued, &c pdrtc, Tor the plaintiffs In error.
He makes some remarks, to show that it is useful and ne
cessary that such u jurisdiction should be possessed, and
therefore seems 10 argue that it Is possessed. He refers
TO no case, and does not intimate that the point had ever
been previously settled.-(See his opinion in the Nat. Int.
OF March II, and in 6 Peters, 563) The Chief Justice,
IN his opinion, as published in the National lntelligenccr
OF March 10, 1882, aud republished from tina, paper
the Union, dismisses The subject. in four short
sentences, which import, that as the judgment of a State
Court affecting property Cn other words, a civil case) rem
dcred under a law repugnant to the Constitution, laws and
'rcahcs oil the United States, would be liable 10 review IN
the Supreme Court of the u. -, sit cannot be less clear
that The party is entitled to protection "when the judg-
inent affects personal liberty and inficts disgraceful pun
ishn'ent.' IL must be admitted that il is not less dcsira-
bic TO the injured party, that he should be able to find a
remedy IN such a case; but the importance OF such a re.
medy TO him, does by no means prove, that il has been
body.
/ submit it 10 the candor Of every we'll instructed law.
yer anu Intelligent man, whether these opinions were sa-
tisfdctory, on this preliminary aud most important ques-
nort Whether they were calculated to remove a single
doubt from tho mind of one who really doubted the right Of
the court TO exercise such = jurisdiction!
III ! were to Judge from their influence on my own
MIMI, L should say, that instead OF removing, they were
Wen calculated 10 confirm such doubts. l cannot say |
had any doubts on the question before these opinions an.
pcarcd; because | had previously formed, OH the grounds
above suggested, and on some others which | have moi
'l"uSht IL necessary 10 mention, a very decided opinion
against the jurisdiction; which opinion was greatly strength
eued oy the charactero OF the arguments in its favour, con.
tanned IN these opinions.
Thus stood the matter, until within the last two mr. ,hr..
weeks, which have given 10 the public the sirth volume
OF MT. Peters Reports. This volume contains the case
OF Worcester and Butler rs. The State of Georgia m.
ol5 to $50 and l perceive (what 1 confess struck me
when first made the discovery, as not a little cxtraordi-
nary) that the following passage has been inserted in The
opinion oil the Chiei Justice, at tho close of the sentence,
10 which | have above referred.
rms point L. c. whether a judgment in a criminal
case deciSed in Il state court, could be reviewed in the
Supreme Court Of the U. S. has been ela6orafclv ar
=" g"ed, and otter deliberate consideration, decided. in
'' ginid. q Uhedt. 26I."
In the n Ational lntelligenccr Of March 10Th, 1892. now
neiore me, ths passage Is not 10 be found; and as the opin-
ION published in that paper, was received from the rspor-
'er' ms 10 be presumed that the passage in question was
not inserted until the reporter came TO prepare the case for
ms volume PREVIOUSLY TO that time, the very unsatisfac-
tory manner in which this point wa. discussed in the opin-
IONS had been repeatedly pointed out in the public prints,
AMI informal addresses and other documents. Is il too
much TO suppose, that the amendatory clause was intro
uuceu' Ir the purpose OF sustaining, what il was by that
tine seen, was the weak point of the opinion: And does
net the insertion OF this amendment, 60 far TO prove the
justice Of the suggestions above made. in resnec, m in.
PreclPi"'hcy with which the opinions were prepared! But
let US see how far the matter is helped by the reference
70 inc case oil Cohens Us. PiTginia. Is it correct TO saw,
tiat The point presented in the present case, had been de
cided in that! | will state the facts, and leave nv re ader,
ana especially my professional readers, TO answer this que,.
ton Tor themselves.
In the case of Cohens rs. Viraiuin The ,,,i,,;a. T. .
ror, had been prosecuted by Information, for selling lotte.
iy tickets in a lottery created by the corporation of Wash.
ingion, under an act of Congress, contrary TO a law If The
oNdNt pl virginia., which Subjected fhnsa NH oHo.lol
against - provisions, TO a forfeiture or fine of Sion. $50 h.
recovered ny action Of debt in the name of any one who
sue lor the same, or by Indictment or information in
the name oil the commonwealth The defendants So, nm m
authority oseI the tickets, under the act of Congress, and
te constitution Of the U. States; but their defence wa,
Owe -Tuieu; tiey were iound guilty of the offence charged
III NE Indictment, and judgment was given for the fine of
~ aha costs 10 reverse This judgment, they brought
lhelT WIN oierror. Ii was objected, among other tbipc.
ny Tie counsel for Virginia, that the ease was, c,in;,oI
anu MOI ciV'i; and that for that reason the court had no in.
Ils'i'ioh; out The objections above suggested, do not an.
pear from The report of the arguments, which /. very FIJI
to have been stated and the stress of the arrymeni
was 10 snow That whatever was The character of the
80, t.Pn OF criminal, The court had no jurisdiction.
IL ahsw er 'o the objection that the case was a criminal
one, hlr' Ogden, one Of the counsel for the Cohens. urocJ
a. a. follows Up .35l) Neither is this a criminal case.
II offence III question is not made a misdemeauor bu N,
fdtc ~ T"ginid. That law merely imposes a pensltv
"hlci may be recovered by action OF debt, or information
" " ne present prosecution is a mere mode
o recovering The penalty. But suppose il il a criminal
case ihe Constitution declares that the court shall have
jurisdiction III a" cases arising under it, or under the laws
'"u aheS VI the Union, which includes criminal az v.II
"a civil cases; iuliess indeed, Congress has ysfI,rd in
F'sa'ot!on oreT the former in the judiciayv act. ,rE;rb
Ue i'SiSf AZ mas not" Mr.. Pinckney IN. 37JN treated ,ho
case as a proceeding under a penal statute, and relied On
NE case oil NJ CHH0ch rs. Maryland, which vas a o,i
tam action. y"
III VIII he seen from this statement. that te y,s
o' IKE mat OF Worcester and Butler, who were indicted
o CRIME punishable by imprisonment. in the peniten-
""Fy' !" mat Tie argument did not touch the difficulties
above mentioned. In delivering the opjnion NJ tho co.,,
do not hnd that the learned Chief Jnst;ce IN - 80
"lSunctIy asserts the doctrine that cases strictIu criminal
eau Oe brought by writ OF error from the state court IN
'e supreme Court, aud / am very sure that there ia NJ
Critical examination of The 25th section NJ The ;,,Go;.I..
IN reference TO this point.
Inc case OF Cohens Us. Tire mia, would seem r,or.
'oTe' 10 Icave thls question entirely untouched: for which
reason l am inclined TO suspect, that the reference IN The,
case must nave been introduced into the opinion of the
~amu' '.snce ~ .o case OF the missionaries, by some
pcfson other Than himself. But however, NAV have col.
zen mere ! think may venture to predict, that il SSviII
n''1'y DC suhlclent to prop up this part OF the opinions
under review. S
As the reference of the dispute between South Carroll.
ma and the Federal Government, to a Convention If all
.u o'a'es' would assume the powers of Construction and
amendment OF the Constitution to be the sane. ,h. Mn
ION on this point OF one OF The most Jealous and in,eiIigen,
trends TO State Rights in the Union, should have weigh,
VT = = barbour IN his letter to the Committee of The
'neenng at ShoccoS Springs, IN. Carolina) says:-R
: nc argument which attempts to maintain the right
OF one Slate to nulliiy, and lhus suspend the operatior If
law passed according TO the forms of the Constitution
uhUl thTce-tourths OF the States act under the clause nro'
Vldihg Tor amendments, seems to me to be based upon hi.
error; That, in every case Of a contested power, the oues-
~ - VIVA, does the Constitution grant as it nOtO isl
whereas, under an amendment proposed, the onestion al.
ways ls' not what The Constitution nor is. but what n,
shall hereafter BE-" """"
This u precisely the distinction taken. and almost in the
De'y WORDS by the author OF " Occasional Reyiews."-
on tho reference OF a question of construction IN the amen.
ddiOry tribunal, the rule OF the ConsHtutioD 10 80. -.