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

been governed by n national committee and council, un.
der the general superiutendence OF the l.. States. For the
particulars OF all these transactions, see NILES Register,
vol 81, p. 37l; vol. 30. p. l6 and POS; vol. 80, y. 2I4;
vol 49, p 1913; 22i; 2s7 aud 2t9
IN relation TO the authority IF TIE recent decision in the
case Of WOrcesier ant B"teF IS. The state Of Geor-
am unwilling that the structures contairci in the Fore
going speech, ON the decision OF the Supreme Court OF the
u. 5. ia tMe case of the Missionaries, shoIlL GO before the
puOhc without an EXPO ZION OF we grounds on which
they arc ioundcd.-l SHALL therefore proceed viii, pro-
fou al respect TO the Conft and 20 its members, but at the
same time, with the freedom which belongs to .an Amcri-
can citizen, To ,indicate ahd establish the renal Is made
in the text; aud | tru't ;lAt those WHO may eel them.
selves called upon to no ice wharl am a!Out 10 say, will
not reply TO my siaiemenisby loose gencraltics, concern
ing the dignity of the court, ,he great talents aud high
character OF its illustriOus head, asd the reverence due
both TO the court and to him: hut will fairly and distinctly
meet the real Poiu,s on which | rest. remark, then
L. That the decision, having been founded on an er
pdTte argument, is not entitled to he considered duthOri-
~; but on the contrary, il TO be followed so far only, as
the reasons assigned Tor il shall be found 10 be substantial.
This, as every lawyc knows, is the rule uniformly op-
piled 10y courts themselves To their Own decisions, when
made without the advantages of au argument on both
sides. Such dGcisiOns are always considered as open TO
uisenssioi' and as not obligatory even on the court that
made them.
This is not mere technical rule OF practice; it has been
~adoptedb by thc courts from a wise regard To the constitution
oil The human mind, and the nature aud object of the iu-
dicial institutions of all enlightened nations. To illustrate
this, let me ask why il is that in every such nation. il has
been supposed to be Indispensable To the administration of
justice, that the cases which are brought before the in.
dicial tribunals, should be discussed by counsel selected
ny the parties, from an order OF men specially trained nm
TO the business of advocating tie claims Of others! Not
surely TO furnish employment for a particular class of the
community, at the expense OF those who are unfortunately
compelled TO go TO law. Tho reason OF the practice lies
deeper; iii because IL is indispensable TO the formation of
a correct opinion on any subjeci-and above all on Judi
cldt su6Jeefs-that a iuli hearing should be given TO both
sides. But the persons to whom judicial questions are 10
eesubmiiied, however enlightened they may be, are We,
but men-beings whose faculties are limited and whose
Judgments are iallihle. Such beings cannot, i'm complicated
eases which admit of - great variety ofopposinp consilera.
tions, take a safe view OF both sides. unless ,hey r. oilsd
DIV tnOSe who have ipNpStipafal a., .,l;,., ,sl. -
view TO discover and bring out all hat may be said on
edch side. Mankind understand ibis; and they have
therefore invented an arrangement which secures TO
those who are TO exercise the judicial function. an
opportunity of hearing both sides. Men, familiar with
the law and accustomed to think and to reason, are employ
Gu 10 mink Tor their respective clients. They arc simu-
lated, too, by some OF the most powerful incentives which
can influence the human mind, TO task themselves 10 the
junction me one hand, to bring out all that can be
urged in behalf of those with whose interests they are
charged; and on The other, To examine, and analyze, and
refute the argumtnts of heir opponents. In this wy ihov
furnish 10 the learned and imperial tribunals, who arc Fl.
naHy 10 pass upon The question, a complete view of the
whole ground. The decision made after such a view NAV
wen De howed 10 as an oracle, and followed as = p,ece-
dent. 1t needs no illustration TO point out the difference
between a decision made under The circumstance, | have
described, and one made Oh an &c pdIte argument. But
case, because
= The decision wa'made with a degree of precipitation
"n'ch, u'uer inc circumstances Of the ca. 8, was we'll cal
cu'ated TO impair the confidence which might otherwise
have been reposed in it.
The Facts in ComncXion, with this point. are a, follows:
Georgia, very unfortunately rs it seems TO ne, instead of
sending some OF her able civilians To argue the cause no.
fused 10 appear on the return Of the wiito of error. ami The
cause was therefore argued er pGrte by Mr.. Writ. and
MIr. Sergeant. on the part Of the plaintiff. in error, on the
2Oth, 2lst aud 23d days OF February last; and the d.ci-
sion was pronounced ON the 81 day OF the following
month, Judge Baldwin dissenting not only on n question NJ
lorm. but on the merits, which he had examined at large
III 1881, on the bill fled by the Cherokees against die
state oil Georgia: Judge Johnson, who had also, in 1881,
expressed the like opinion on the main question, wns alb
sent ne decision was therefore that Of the five re-
inaihihg Judges who gave at The utmost, those portions Of
The eight or nine days inter vcning between tie are ument
ana the decision, which were not occupied in Court. TO
the consideration OF a cause involving consequences of
the highest possible Importance, not TO individuals merely.
but TO a sovereign State, TO The whole naion, and 10 nos.
tcrity. In case OF so much mapuitudo could pa,
have been wiser in The Court, to have taken the course
whIch they very frequently take, la ordinary controyer-
Ses between man and man, when the questions are inn
portant' and above all when there is a diversity of opinion
on the Bcnch-ihat is-to have postponed the decision
until the ensuing term? The wisdom, not to say the nc
cesSity, oil this course, ought TO have been the more an.
PaIeh' 10 inc H'y'uiyot the Judges, in consequence of the
great excitement then existing on the suhieci, and of the
Hiahherth which, before and during the al gumcnt, the de-
Gisloh Wmch was Ultimately made, was urged upon them.
III would also have been well for them to have considered
mat The peculiar attitude in which the learned counsel
who argued ills cause, stood before the nation-the
one a candidate for the Presidency and the other for
The wee Presidency- necessarily connected the case,
20 sonle extent wan party politics, and made it the
more important 10 proceed with great deliberauon. But
may he told, that the case involved the liberty of citizens
then III prison, aud that Ibis rendered it important TO ex.
pedl'e the decision. This would indeed have been a GOOD
reason Tor great expedition, in an ordinary case; and do
not know nut even IN a case 80 peculiarly circumstauccd
10 nus u IL Hdd not been quite apparent that the result
would be precisely the same in this respect, whether the
decision were made al the close OF the term in March. 1892
or on the first day of the ensuing term in January Is33.
because IL was well known that the Georgia court womb
not obey the decision. and that no process could be award.
ed by the Supreme Court until they should receive a re-
,urh 10 'heir irSt mandate; which return it was also well
known could not be received until the first day of the on.
suing term. Its extremely unfortunate thai these filings
were not considered by the Judges, especially az there
were DINER grave reasons for posiponing the decision until
Jan 1873. Before that day, The Presidential election and
ihe eXci'cmcnts connected with il, would have been decid
CO.. ana whatever might have been its result, there would
al least have been no opportunity 10 connect hc decision of
the court, or the opinions Of the Judges. with p,rtiz,n II
Peals. Let me not be charged with insinualine that Tie
majority oil The court, or any one of them, acted under he
i'iIucilce o me feelings, which, out of court, were evident
W connected with this matter. merely state the facts,
anu l S'ate ulcu' Tor The sole purpose Of proving, what
alone | affirm, that the haste with Which the cause was de.
cided, was, under all the circumstances of the case. nnne.
eessaTy and indiscreet, and justly calculated 10 dctrac,
from the weight Of the opinions.
g. In relation 10 The question, whether the Courtiposses.
sea appellate jurisdiction IN criminal cases conmensed in
the State Courts, the opinions were quite umsalsractory.
Let me hrst state tr, difficulty which exists in respect
to this jurisdiction. SIppo,ing the grant of i1ri .lirtioi,
contained ~ the Constitution, 10 tc broad enough TO include
criminal eases, which, - will be seen by reference To the
language Of the Constitutions, aud 10 the con,enporancons
expeditions given b. the Conventions Of Ncw.York and
Rhode Island, 10 which | shall refer in a moment, is by no
means clear; then TIC question arises, whether CONGRESS
has made provision for he exercise of this Jurisdiction. bv
any law now ia force. II This has been done al all. it must
nave Decn by Tie 18th section Of the judicial act of 1889:
lot Una j. Tue only statutory provision which has ever been
passed upon the subject. Now, as | read that section, il
was intended to be confined TO judgments and DEGREES in
civh cases. The language used, appears 10 me, to bc i'm.
consistent with the idea that criminal cases were also in.
tended 10 be reached. ln several particulars. il T.. unite
m'PPIoPl'te To criminal proceedings. And when we