The southern press., 1850-09-03


understood to confer on the department ANY po
LrTIeAL POWER WHATEVER. To come within this
description, a question must assume a legal form
for forensic litigation and Judicial decision There
be parties 10 come into court icho be reached
BY its process and bound by its po,cer; whose rights
admit OF ultimate decision by a tribunal to which
they are bound to submit.
ga case in law or equity proper for judicial de
eision may arise under treaty, where the rights
of individuals, acquired or secured by treaty
are to be asserted or defended in court-as under
the fourth sixth article Of the treaty of peace
with Great Britain, under those articles of oul
late treaties with France, Russia, and other ma
tons, which secure to the subjects of those nations
their property within the United States; or as
would be an article which, instead of stipulating
to deliver up an offender, should stpuate his pun
lshment. provided the case was punishable by the
laws and in the courts Of the United States Bul
the judicial power cannot extend to political cont
pacts, the establishment of the boundary line be-
hoeen the .4nlericon and British doinions the case
of the late guarantee IN our treaty with Frances
the case of the delivery of a murderer, under the
twenty-seyenth articles Of our present treaty with
Great Britain"
Now it is perfectly evident, from the language
of the Constitution, and from the history of
it, "that the cases in law and equity" and
" controversies" to which the judicial power OF
the United States extends, are those involving
usual subjects of forensic litigation. 1t most GER
tainly does not refer to all controversies, Of no
matter what character, between the parties EMU
merated. Take two cases for illustration, and
very many others could be added. few years
ago, controversy existed between New York
and Virginia, arising under the Constitution and
laws of the United States. The Governor of
Virginia made demand upon the Governor of
New York for the rrender of three fugitves
from justice. The Governor of New York refused
to comply, and assigned reasons for his refusal
which were considered by Virginia of the most
alarming import. The Governor of each State
was backed by the Legislatures of their respective
States; and thus the controversy became emphati-
cally one between two States, and it was a very
angry one. Now, will any one say that such a
case as that could be tried in the Supreme Court !;
How could the parties be brought into court? In
such u case, how could the judgment Of the court
be enforced' Again: the judicial power of the
United States extends to controversies between a
State and foreign States, and to controversies to
which the United States shall be party" There
were questions of boundary between Maine and
Great Britain, and between Texas and Mexico
Will any one say the Supreme Court could
take jurisdiction Of such IL question, even if the
foreign State should be willing to trust it to our
courts
The Constitution did not design to confer upon
the Supreme Court jurisdiction of any other ques-
tons than such are the usual subje of foren-
sic litigation. So far from its being the purpose
of the Constitution to confer upon any one of the
three departments Of our Government powers
greater than usually belong to them in other Con-
Governments, it is most manifest that
the purpose greatly to restrict them. But
questions of boundary bet,reen Staes have always
been considered political, and not judicial Such
a construction would give the Supreme Court
jurisdiction in the case under consideration, would
in the language Of Judge Marshall, 'swallow up
by the Judiciary the other departments
Let us test the question of the jurisdiction Of
the Supreme Court in the case Of the Texan boun-
dairy by the principles have laid down.
First, as to the process. What judicial process
will reach a STATED There is none. Congress
frequently has been called upon to provide it, but
it has refused. Upon whom will you serve the Or
dinary process' Upon the Governor. He is not
the State. Upon the Attorney General? Why
upon him' Upon the Legislature' How would
you do it? Not being able to serve the process
to commence the suit, would you proceed against
the State to outlawry' In the cases between States
which have been decided heretofore by the Su-
preme Court, both parties voluntarily appeared
1t is true, consent cannot give jurisdiction; but
process may be waived. But suppose this diff
Guilty overcome, and Texas should refuse to an
swer, how could you compel herr Would you
issue an attachment, and imprison her for con-
tempt? Upon whom would you serve your at
tachment, and whom would you imprson Would
you proceed against her by default? Where is
the statute to authorize you to do so' But sup
pose the parties should appear Then the ques-
ton of jurisdiction arises.
The first thing to be decided in questions of iuris-
diction is, as to the character of the parties. You
must ascertain if the parties are such as can
litgate IN the forum, before you inquire as to the
nature of the question. No matter VIII at may be
the nature Of the question, the parties must be
such as can come and be brought into court, and
l,,tt Al
record to the end Of the cause, and can be bound
by its judgment. This obligation must be mutual.
Now what parties there to this question Of
who can sue or be sued? In the
first place, deny that the United States has any
controversy, technically speaking, with Texas.
If there be such an one demand to know when
it arose, and who made it. The President cannot
can member Of this House or of the other do it.
1t can be done only by the Government, and not by
one department of it, Now, sir, when or where
has the Government made any controversy with
Texas as to her boundary? 1t had one in behalf
fTeXas with MeNico but that is settled and there
s an end of it, But when and where has it made
one for itself? The President has most illegally at
empted to do so. But he has not yet become ''the
State, "asa French monarch claimed to be- although
admit his pretenslons are rapidly leading thatway
If the United States be not party, is New Mex
COZ Sir, there is no such political being. She
TX PlTeu Wnen Sne was conquered Dy our arms,
md annexed to our territory by the treaty. What
ever doubt there may be as to the existence Of
Mexican municipal law in the territories we ac-
luired from her, there can be no doubt that her
political law has expired
But it is said, if We admit her as a State she be-
comes revived, and that then she would be party
capable of ltigaing with Texas. have already
shown that she cannot be admitted pending the dis
oute with Texas, without the consent of Texas
But suppose am wrong in this, still, considering
he character Of the controversy, New Mexico
would not be such IA party to it as the court could
ecognze. A party to controversy, to be proper
,ne on the record must be such an one as will
continue on it to the end OF the cause, survive the
inal decision, and be bound by it. But if the
ourt should decide against New Mexico, itwould
nnihilate the party, deprive itself Of jurisdiction
n the very act Of deciding the case upon its
merits, and be incapable Of pronouncinga judicial
lecison upon the question it undertook to try.
'arties sometimes prove themselves out Of court;
tut here the court would determine it had no case
before it in the very act of deciding it. 1t may
'e said, however, that part Of New Mexico is
'ot even claimed by Texas, and that that portion
would still constitute the State Very little of
New Mexico capable of habitation by civilized