The national era. [volume] (Washington [D.C.]) 1847-1860, 1859-02-24
WASHINGTON, d. G..
The Federal Judiciary.
SPEECH OF HON. PHILEMON BLISS,
IS THE Q. S. HOUSE OF REPRESENTATIVES,
FEBRUARY Z, 1859.
Mr.. BLISS. Of Ohio. said /:

to his esrly instincts, he again appeals to the
Supreme Court, as authority for political opin-
ions, and indirectly approves an old dogma, re-
Gently endorsed in the report of a Democratic
committee of my own Legislature, " that the de-
cisiOnsS of the Supreme Court, upon coDstitu-
tional questions, must stand as a part of the
instrument itself, until they reversed" 1t is
TO combat that ultra Federal dogma, and TO ex-
plain the provisions of certain bills of my own,
that propose to speak
During the last session of this Congress, the
judiciary Committee reported against bill in
tro3uced by me, repeating the twenty-hfth sec
tioa of the judiciary act of 1885, and eurtailing
Tue haJeas corpus powers of the United States
Judges. had then no opportunity to express my
views upon the subject-matter Of the bill. There
Is now before the same committee a bill intro
iced by me- TO prevent TIE packing of juries in
tne Federal courts of Ohio. ! shall not hereafter
STARE the responsibility Of Federal legislation
aa,l. despairing Of present action, should per-
hpps, content myself by letting the bills them
selves EXPRESS nv views But find myself con-
strained to speak. Amid the din of crowding
events, may fail TO get hearing yet cannot
return 10 ms people without giving vent to my
Geep conviction of the dangers 10 the citizen and
10 our feaeratve system from the Entertainments
oi the Federal courts.
We Justly praise the Federal Constitution.
That instrument in its simple, its comprehensive
grandeur. will ever command the homage of man
liad Even when the infdelity of degenerate
people, trampling on It's guarantees, abusing its
lowers spurnng its reservations, shall render its
bruignant provisions a curse, the instrument
itself will deserve none the less reverence but
only prove that liberty and law, justice and tram
GUILTY. are the result of a spirit and not form !;
., sentiment and not parchment. But we speak
fhus of the Constitution in reference to the times
and our young experience. 1t has grave defects
IN not sufficiently guarding Its provisions from
unseen, but which now command the most seri-
Gus alarm
As we were to have a Government as well as
League a separate judicial department became,
or Vas deemed, essential. This judiciary must
OF course have cOgnizance OF cases arising under
the Constitution and laws. 1t must in sach cases
decide upon the powers in the Constitution and
.pon The reserved rights of the States. There is
no avoiding this, whenever "a case arises that IN
aolges the necessity of considering them.
Il is one OF the evils arising from every written
Constitution from the fact that it is written, that
n court mag so twist its language as to enforce as
fundamental law provisions undreamed of when
adonted We feel this evil in the States, and seek
20 guard against it by Judicial responsibility, by
limiting jurisdiction, and, above all, by giving
health 10 oDinion Evils like these were I'M
known to our fathers. The great danger, now
50 patent in giving to permanent body OF men
the power, without responsibility, TO interpret
even in causes OF judicial character, the Con-
stitutiun and Federal laws, and to decide the
extent Of their own powers, seemed not to have
oppressed them They regarded the Judiciary as
weak, and needing strength. 1t had not been a
power in the colonies it had not been a power
ia the Revolution. Mr.. Hamilton says: I" The
judiciary from the nature of its functions, will
ALWAYS be the least dangerous to the political
nights of the Constitution" (Federalst, No. 7s. }
And thus he slsGYs spoke. Ii is evident also,
fcom Mr. Madison's convention report, that the
political influence O: the judiciary was not
feared, Elliot ., 1881 Our English model had
no power to nullify, only to interpret and a
false though innocent Interpretation was easily
remedied by appeal to the Lords, or by a new
enactment Hence the spectacle of a gowned
coliclave, gravely setting aside statutes and con-
stitutions of sovereign States enforcing powers
not granted in the compact, and against the eX-
press reservations CT the States with eager zeal
reversing the whole current of authority and law,
&c make universal a local and exceptional des-
potism prompting its ministers to mayhem and
murder sure OF their Illegal shield, never dark
ene1 our fathers vision. Had 1.-THE of what
we snIpidly suffer been anticipated by them, the
Federation itself would have been an impossible
itv ut !east, the court would have been but a
Hamnton's dream of life Executive and Senate
But they had seen the English danger of depend
ence upon the King, ana installing phrase fol-
a. fact thought they saw the English remedy in
independence OF the Judiciary"
There never was more serious mistake
There is now there was then, no such thing in
Engiand as the independence of the judiciary
The most important judicial ofcer-the Lord
Chancellor-the only one who possesses any po-
Iiticsl power, comes and goes with every Admin
istrstiOn and all the other judges are subject tC
removal by n bare majority Of the Parliament
The power that changes Administration car
legally dsTobe a whole bench and the con
IL n r
Iitical power TO the cOmmon-law judges, ha
been the true conservator of the English courts
No il il the responsibility of the Judiciary
that has redeemed the English bench. " indie
pendence of the judiciary" simply meant indie
pendence of the Crown, with responsibility t.
the people. Words sometimes the vail a
well as the mirror of things; and the phrase
both true and false, kept out of sight the rea
character of the great English reform, and die
fated the strange tenure of our judges, and blind
ed the Congress Of 1883 TO the power their juris
diction over the States might give them. Tn
scarecrow of impeachment that laughing
stool, Of irresporsibility--w weakly trusted T.
frgiten those whose unchecked " i'll might make
u. aid monoposts and demagogues to make an
uuRake constitutions and laws.
And, besides, il cannot be denied that the con
ssrvaiism of 1887 and 1889 dared not fully I
trust the people. | often surprised at il
blindness now, as then. Tinid and usually hon
est il shows the sagacity OF the ostrich, an
The clearsighedness of the owl at nOonda,
Conservatism would treat man as a child, to /
always led ; or a wild beast, TO be always cageC
while Democratic Repubi;canism regards him
IL rational being, TO be developed a perso
cLothed with the responsibilities and charge
with the duties of majority. Conservatism wou
guide him and sustain him only, of course,
prevent mischief to himself II would keep hi
from the water till be had learned to swim
would withhold gun till he had learned i
use would measure MS daily food for fear
would over-eat; and would surround him by
police 10 prevent him from jostling and beir
jostled in his walks while Bepublicahism won
bid him plunge in tie stream, shoulder his ON
weapon, regulate his own diet, and thread b
own pathway.
We're development unnecessary, and could v
always insure both wisdom and goodness in O.
rulers, there might be some excuse for consery
tisIn The good, though somewhat mythic
Incas. were said to have made people happ
though they kept them babes, waiting TO vie
20 the first assault. But our experience sho,
Us that power Away corrupts, and the colsciOu
ness of irresponsibility only stimulates the selG
passions The only true conservatism teach
personal independence in the citizen, and STR
responsibility in every department of Cover
ment It is true, the people may become &C
rupt but, alas where, then, can we look2
a man cannot govern himself, how can we tr,
him 70 govern others9 If he fail to himself, "
he submit to the wise? Or, rather, will he I
become the prey of the INSCRIPTIONS, or the
rant Of his fellows? Surrounded by those for
that shall check passion, protect the individu
and render impOtent sudden tumut, THE fgoP
more honest and as apt to be wise as their 81
wants must govern the governors-be the I
bunal before whom all tribunals bow. The &C