Daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1859-1865, 1862-12-24


ton Of the people declared, in 1861, tha
only those who we're elected, and who aual
ifei, should be the legislature of the state
NIGH 60 some what further With this ar
gumeEt, 1'ssy that the Ultimate power Il
decide that question, tsWt tich Of these bodie
ig the 'LegiSlatare Of Yirginia7t is in III,
Congress OF the United ,Stetes What Is tn
lawfnl Legislature ofthe State2t Athongl
they were literally chosen upder the amend
ed constitution Of Virginia, (adopted L
1857 and the statute Of the State, never
theiess, sey that It is competent for Con.
rgresa 70 say, and Il Is not onIy competent,
but Fit,isthe imPeFatiye duty Of Congress tt
Say that not q mat OF them Tho refused n
take the osth prescribed by the Federaj
Consultation, aud who took the oath of
treasonHble conspiracy, at Richmond, ever
became . member Of the Legislature of the
State Of Virginia. Who then are the Legts.
4Rttre Of ViEginia7 Only those who quail.
ity, In pursuance Of the requirements Of the
ordinance of the people themselyes, by
taking the oath prescribed by the Federal
oonstiEutiOn, aud BY the Virginia Gonstitp.
ton. If those gentlemen, bad chosen to
observe e'that form they might have cepsli-
they did NOT do it, either AZ Wheeling or at
Ricbmond. Tdey violated the conStitution
oftheir own State, as Well as the Federal
Constitution, when they went to Richmond
and took the oath of treason.
o. Now, who are the Judges OF this matter?
Intend, IL lean, to strip from every nom
Der of this House all Attempts 70 disguise
his fesPonSbility here | am not goT1R 70
quarrel With good friends il they differ With
me as to final concinsioAs, but / am not
going to stand here aud allow the Repre-;
sentatives OF the people, on . q question OF
this magnittide, to ghirk their responsibiIi=
~. / say It without the fear of cohtradic! /!
tion, becabseAi II has been affirmed by every
branch OF this Government, Legislative,
executive, and, Judicial, more than once,
that when the storm of revolution shakes
the civil fabric of q State of the Union, tbe
ultimate and! !fnallarbiter 10 determine who
conStitut6 the Legislative and executive
government of, that StateG eRpdy holds its
great trust Of sovereignty, IS the Congress
Of the United States, or the President act;
ing by authority of an act Of Cohgrsss.4
The greSt case of Luther and Borden must
be freSh In the mind Of every Represents
tive Of the people. and that was the, very
question which Basthen aud there decided.
What did theHe court decide in that case4L
Luther brought his action, for treSpRss to
nh1 uoulCtl6 III b1d ALlEGUtk OOurI OF tue
United. States for the district of Rhodels-
land. He charged the defendant in that
case with having broken open hisresidepce,
which every man knows is, under ourlaWs,,
his castle. he charged iu his declaration
that deEepdahts not ohlS Sibr6ks into and en-
tered his, s,hPqse,. but want through ALI his
rooms, from gRrret TO cellar, in search of
his person; that he had violated, II you.
please, his sacred right Of 'donicile. ~.
Now, may be paFdoned. for reminding
gentlemeuhsTet that there Is NO right known
to the citizen, under the American law, or
undeI the law. of any country beneath the
sun Where the principles Of the common
law obtain, whieh is.looked upon as more
sacred than tho right Of domicile. You
know that.by the common laWi II is held
so sacred thathe Rho iiuvades il without
the leave of the owner, aad especially me!
uaciugly, Is not entitled to the benefit OF
the rnle that the party whom he assails
must Gee 70 the wall, hut he may suffer
instant death, and the owner is justified
befure the law because his. hesrth-aton6 is
not to be violated by n malicious intruder
against his protest and against bis consent.
There Was a strong case against defendant
on that record II he had not justified the act
But. he did justify howl Rhode u
land had beer. In revolution. Two opPo-
sing governments. had been in operation.
Who was to decide which was the lawful
government They, fret said that the
courts were to. ,deeide.g They asked. the
courts Of Rhode Island TO sit In Judgment
upon the question whether the government
under which they. held their commission
was 4 government at all. The CHIEF Jus.
tiee OF the United States, with. bitter irony
aud sArca5m, remarked that he did not
''see how the question could be tried and
decided in q State court - for that, when
ever they arrived at the conclusion that
the goyernmentto which they owed their
existence was no government at all, the
court itself ceased TO be . court; and could
not pronounce the Judgment. Tho breath
of life would 60 ont Of the body instantly.
This action, however nfoTi trespass, was
Instituted in the United States. eopFt for
the district of Rhode Island ~ -. ~ " gu
Tho defendants, by thetFiplea, justified
the traspass ION the ground that plaintiff
was ebgage Ia insurreetion, together with
othegs, against the State; that the State
was, by competent authority, declared nu-
der martial law; and that defeudantsI being
in the military service Of the State, By
command of their superior officer, broke
and entered plaintiffs house. The plain
Hu uenleug tne AuknQEASy,s Auu Gepueu lJ.NAt
defendAnts' own proper wrong. In other
words, was the goTernmsut gaipst which
the pIaihtiff was in insurfeetio1 the COY,
ernment Of Rhode Isisnd2JAl "a ei1si
The case finally came up to, the, Supre me
Court Of the United States. The Chic
Justice Clancy In delivering his opinion
said that 1t was . political question, AND
thatthei decision Of It by the Federal Ex.
eeutive, under the authority of Congress
was binding on the judieiarys He AlSc
said the power TO decide the question
which pfi tEoj goyeElpsnls In State Il
the true government is In Congress..7 40,
That decision amounts % Just this, dhf
that Is what gives Importance 70 it.in the
discdssionS6f this question; It the Congreii
Of the United States .solemnlEi decide, a
they are the uliimatS aT6itsF Of this pOiiI.
ical question, thRt-the people Of. Western
Virginia haye pq right 70 nAiatAin the goT