Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1854-02-01
fco1.aUNIcArIoS,l
NSPEoToRs OF TRE PENIrENTIARY

/ Vile. his lulfOuuCtlpu ny luS CuisOA W SSt
pose intended to give the opinion referred TO more
| influence with his readers. We clip the following
paragr aoh from the opinion of this member OF the
bar" for the purpose of showing the premises ne
has assumed as being correct, and from winch ne
draws the conclusion that the first board Oh lnspec
tors are legally entitled to hold on to their places IN
defiance of the nominating and confirming power.
| The paragraph is as follows:
ave have seen the nomination was made and
confirmed and the fact certified by the Clerk of the
| Senate and the certificate delivered to them by the
Governor and they accepted the off and entered
| on the discharge Of the duties imposed by law
! Thus every act and formality necessary to invest
them with the Office, was perfected and finished,
and they in possession of the Office, and in the
discharge of its duties before the motion to recon
slider was made The Governor, Senate, and Clerk
of the Senate, had each and all done every thing
they could do to fully invest them with the office"
If the Banners ''mepber of the bar, has made
himself actually familiar with the facts and history
of this question he has assumed that In his premises
which he must have known to be untrue, and If ne
had not made himself familiar with them he ought
not to have stated that which he did not know and
he is at liberty to take either horn of the dilemma
compared with the statement made by the Banner s
"member of the bar" In obedience to law, the
Governor on the Doth of December 1885, nomin-
ated GEORGE L. SLOAN, SAMUEL ?. AMENT and
| GEORGE W SMITH, as suitable and competent per-
sons for Inspectors of the Penitentiary These
nominations were taken up and acted upon by the
Senate on the I'd of January, 1854. This action or
confirmation was not final and complete, it being
in order by the 26th rule of the Senate which was
prescribed by that body in pursuance of the
Constitution TO reconsider it The rule referred
to- is as follows: when question has been
made and carried in the affirmative or neg
alive, it shall be in order for any member
voting with the majority to move for recon-
sideraton thereof at any time the same day. or the
two next succeeding days Of actual session" This
is the law of the Senate, and there is no power in
this government that can abrdge or impair the
laws made by the Senate for its own government
1t is prerogatve peculiar to the government of
that BODY expressly conferred by the Constitution.
In compliance with this law the motion was made
to reconsider the confirmation Of Inspectors with
in the two succeeding days; the Senate did re-
consider, bringing back the nomination and placing
it before that body in the precise condition 1t was
when first submitted by the Governor; and at this
stage of the proceedings the nominations were
withdrawn leaving the whole transaction as it was
in the beginning. The Senate made no order at
any stage of the proceedings directing the clerk to
officially notify the Governor that the nominations
of these Inspectors were confirmed, and of course
no certificate could have been given by that officer,
of the fact. The Governor issued no commission
to them as Inspectors. They as Inspectors took no
oath of office as required by the tenth article and
first section of the Constitution, which is as fol-
lows: every person who shall be chosen or ap-
pointed to any Office of trust or profit under this
Constitution or any lao made an pursuance thereof
shall before entering upon the duties thereof take an
oath to support the Constitution of his State ard Of
the United States, and an oath Of office
1t will be perceived from this simple statement of
facts that the Banners member of the bar has
assumed false premisis and of course his conclu-
sions fall to the ground The Governor, Senate
and Clerk of the Senate had not each and all done
every thing they could do to fully invest these gen.
temen with the Office of Inspectors. The conclu
sion must and will no doubt force itself upon every
unbiased mind that the persons referred to do
not possess and have not been clothed with the
first legal or practical requisite necessary to con-
stitute them Inspectors of the State Penitentiary
and every attempt on their part to act as such is
gross usurpation of power, and total disregard of
popular sentiment and the wish Of the Senate and
Governor, who so promptly repudiated their at
tempt to set the popular will at defiance.
The Banners member Of the bar, in quoting |
authority to sustain his assumptions and conclu- |
clusions has been equally or more unfortunate than
he was in the statement of his facts. He calls the
attention of the public to the case of MARBURY as
MADISON, in lst Cranch United States reports. He
gives quotation from the opinion of Judge MAR
SHALL, purporting to be delivered in the case. 1t
must be remembered, however, that Judge MAR
SHALL never failed, and admitted as being true,
and whenever an opportunity occurred he always
claimed the largest margin for the exercise OF the
jurisdiction of Federal Court of the United States
Mr. JEFFERSON who was President Of the United
States at the time referred to by the Banners "mem-
Der of the bar presumedto beas familiar with the
history of the case as Judge MARSHALL, and whose
opiuions are as much entitled to consideration if
not more so, than Judge MARsHALLs, is in direct
,ontradstincton to that of the federal Judge, and
n this connection we propose to let Mr. JEFFERSON
,peak for himself.
JEFFERsoNs works, volume a, page 1928:
This practice of Judge MARSHALL, of travelling
,ut of his case to prescribe what the law would be
n moot case not before the court, is very lrregu
ar and very censurable. | recoect another in
tance, and the more particularly perhaps, because
t, in some measure, bore on myself Among the
midnight appointments of Mr.. ADAMS, were COM
MISSIONS to some federal Justices Of the Peace for
Alexandria These were signed and sealed by him,
nat not delivered ] found them on the table Of
he Department of State on my entrance into Of ;
ce, and l forbade their delivery. MARBURY,
AIMED in one Of them, applied to the Supreme I
curt for a rlandanaus to the Secretary of State [
Mr. MApIsoN) to deliver the commission intended /,
IT him. The Court determined at once, that be- 7
y an original process, they had no cognizance of
4; and there the question before them was ended. I
ut the chief Justice went on TO lay down what
lie law would be- had they jurisdiction of the case,
wit that they should command the delivery C
he object was clearly to instruct any other court