Daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1859-1865, 1860-07-19

cited, we find Chief Justice MarsbaII ot
later period, in delivering the opinion oI
the Court in Fletcher vs. Pccks. Cranch,s
n. 81, declaring it is not on slight inplica-
tloh and vague conjecture, that the Legis-
iature is to be pronounced to have tran.
Scended its powers, and its acts to be con-
Stdered void. The opposition between the
constitution and the laws should be such
That the judge feels clear aud strong
conviction of their incompatibility with
each other" : =
An unbroken Chain of decisions to the
same effect is to he found in the State
courts. l shall refer to but few of them.
In ADAMS VS.. Howe, II Mass, Il 345, the
doctrine is thus stated, 'sthe Legislature
Is, IN the first instance, to be the iudpe of
ltsown constitutional powers, and it is only
when manifest assumption of authority, or
mlsapprehension of it, shall clearly appear,
th"t the Judicial power will refuse to exc
cute the law" And again, in Wellington
vs.. Petitioners, l6 Pckering's, R. 95, the
same Court announce their determination
never to declare a statute void, unless tho
nulllty and invalidity of the act are placed
in Acknowledgement boy yond reasonable doubt. u
The Supreme Court of PENNSYLVANIA deny
the powers of the Courts to interfere to
set aside law, unless the Legislature
nave encroached on ground which they
are positively, or by necessary implication
forbidden to enter, | Penn. State, ReD.
70. And the Court of Appeals in Ken
tucky, in the city of Louisville VS.. Hiatt,
Monroe, l78, says, "if it be doubtful or
questionable, whether the Legislative pow
er has exceeded its limits, the Judiciary
cannot interfere, though it may not be
satisfied that the act is constitutional;''
and again, i'll Lexington against McQuil-
Ian's heirs, Dana, 5l4, tive should be
justly chargeable with wandering from
the appropriate sphere of the judicial de-
partment, were we by subtle elaboration of
abstract principles and metaphysical doubts
and difficulties, to endeavor to show that
such power may be queSGRn klounus 10
aufy' ana 6verrule the public will, as clear
ly announced by the legislative organ"
We thus see that when the constitution
ality of an act ofthe law-making power is
attacked by the Judiciary, the presumption
is in fIvOr of the Legislative authority,
the assailants are bound to make ont their
case beyond - reasonable doubt or stand
convicted ut the bar OF the public of usur-
patton. And for this we lave produced
the highest judicial authority. We shall
now proceed to inquire whether Congress,
in asserting a power of municipal lcgisla-
tion for the Territories, has been cousis-
Constitution to very late period. And
whether the Supreme Court has been con-
sistent with itself in denying this Con-
gressionnl authority. If the 9Th section
of the act of the 9th of March, 1920, COM
monty called the Missouri Compromise, is
found to be unique, singular, exceptional,
then the position of the Supreme Court will
be strengthened But if it is found to be of
Il series of enactments, which, though not
identical, all imply the same claim of con-
stitutional power there upon the sclf-same
principle, the task of the Supreme Court
will be rendered more difficult That
Court will, upon every principle of rea-
son, be called upon to explain how it hap
pencd that Congress and every other de-
| partmcnt of the government came to
adopt and pcrsevcre in long course of
usurpation, without the slightest oppOSi-
tiOn from any portion of the people. We
indulge in few preliminary observations.
The author is one of those who believe
that all just government arises from the
consent of the governed, and should be
directed exclusively for their benefit
And as the power of Congress to enact
municipal laws for the Territories is at
least an apparent exception to the first
clause of the above proposition, it should
be exercised within very narrow bounda-
ries, and not carried beyond the absolute
necessity of the case; and ought to cease
! just rs soon rs the Territories become
Sclf-SuStaining communities capable of
self-dercnce. But it is our business now
to vindcate the Constitution, to demon
strate what has been the actual practice
of the governments; in one word, to dis
cover the principle its exceptions and linz
itations will be Il matter for future consid-
Grafton.
Though the Ordinance of the 18th July.
| 1897, is one of the few laws deserving not
only the warmest, but the most lasting
gratitude of mankind, the constitutional
power of the Old Continental Congress to
pass it is highly questionable, and in fact
cannot be supported on legal principles.
Be this MS it may, it certainly became
void and imperative upon the adoption of
the present Constitution. For this have
the authority of the Supreme Court,
! speaking by Chief Justice Taney. He
says: "And among the earliest laws
passed under the new government is one
reviving the ordinance of 1887, which had
become imperative and a nnllity upon the
adoption of the Constitution" See 10th
Howard, page 439. The statnte referred
to by the Court is: "An act to provide for
the government of the Territory North
west of the river Ohio" See Peters sta
tutes at large, page so, FIRST volume; Lit
tie and Browns Edition. The preamble
rccites that, "Whereas, In order that the
ordinance of the United States in Congress
assembled, for the government of the Ter
ritory Northwest of the river Ohio, may
continue to hare .fuI effect, it is requisite
that certain provisions should be made SO
US to adopt the same to the present Con-
stitution of the United States"
1t is unnecessary to inform the intelll-