Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1863-11-23

| by the referees III the casa before US.
Il is general principle recognized, believe in all
nations that Stats cannot be tued in courts
without it, consent Chisholm The SAFE of Georgia,
Dallas, 49, Oonvers u.s. The State OF Virginia,
Wheaton, All, Az; Aurray's Lessees rs The Hobcken
Land and Improve ComT any, Is Howard, 285; At
torney General, Us. TWpn, Helning q Munfcrd, 557.
| Opinion of Tucker judge) ~
In this last case Judge tucker says: "The principle
commended for by the Attorney General and admit d.
haHcve nv eytry writer the law Of nations is that
the Comm6n wealth can neither be made liable 10 ITS
own cit in its own courts beyond the tenor OF It's
own engagements nor be sued in its own courts IN aug
other manner than what the law expressly permitd
IL may be worthy OF noic, too that our Coma ulion
Ike that OF tie United States does not declare that the
JUDICIAL power shall exsend all controversies 10 which
the Confederate States shall be party as it declares
that such power shall exterd all cases arising III
the Constitution but to controversies leaving out the
wo all and this difference of phraseology ia COM
lehed NJ o. soma length by Judge Story, ia the case
of Hunter and Martin.
n6lne~to tie opn on that We conslrue the Const!-
tu.ion of the Confederate Staes intending to
abrogae or disregard the general principle OF Jaw abo
aated and as positively requiring Congress 10 vest in
the courts iusdcioipyer all controversies, in the
mon aecep ion OF that term, 70 which the Oonederd
States may be party; but to leave it 10 the diseretien
OF Golgrefs 20 cOsier upon the courts cognzaucs ~
such controversies and disputes oF not a. 1t may deem
i most ady.s able.
The Constitution Of the State of Olo provides, OF
did provide that "prVsts property shall always be held
inviol4te; but always sabserVient to the public well
fare proyi led ecsaton i'll money be maze to
toe owner" Under this clause oil tue Const tuition OF
that Sslte it decided in the case of Wlyard We.
Hamilton G. Ii Ohio Reports pat second M that the
.mode,of assessing diinageJ by commissioners was u
| such cases, Constitutional
10 New York in The case OF j. r. Livingston the
Mayor OF Neg rs Wendell S5) similar decision
was IN lde aM in case, so FAR as AN informed, has
ever been decided anywhere, that the ascertanment
| Of dzsiages By commissioners unconstitutional,
upon the grouLd that it was IN exercise OF Judicial
power.
Il deserves to be remarked, 30, in this connee;io
that the second stcion OF the third Article Of the Con
suion Of the Confederate Statee to which reference
has already been III do while It provides that Safe
may the ciz OF another State o. the C0nieuera-
CO. or the citz subject oil foreign Stale, care
fully declares in express worjs that no spoh citizen or
| suhi CT .hal sue Il Sate,
Ters s an ad ifopai re lson for putting tAe consruc
ton lbove indicated upon the Constitution of the Con
federse aies, which does apply TO the Cons;itu-
| ton Of the United States.
IL ia well established rule for the Interpretation OF
sl u.es that when st.tue OF one, oil which Ihe.mean-
ing Is well settled by tho usage, by the decisions Of
the courts OF that country Is adopted by snoh tue
courts the ator country have Reference TO such
| sga and decisions in order 10 etpould the Law oil
t1.ir county. Il s ia suca case supp sed that tie
heglstUrs If the at,r country, when it adopts the
law OF the former, III it shall be inter preted ss
the statute from which it Was copied has beei under
| STOOL
This rule Of construction Is as applicable to the fun
dImental aw,or Constitution, of State it is to its
statues An illustration Of The rule s furnished in the
case already cited Of Murray lessee Hoboken Land
Improvement Company, Is Howard, PIP; ia which TIC
| Court deliberately investigated the meaning 81 the
words "by the law Of the land IN MGgra Charta, in
order 10 ASCERTAIN the meaning Of the phrase by due
process of Law" ia the Constitution Of the United States,
| which was supposed TO mean the same thing.
NO', es the aScle Of the. Constitution OF the Con-
iederate States relating TO the judicial power is exactly
c)p from the article oil the Constitution Of the Uaed
Stats in xelaton to the subject We may
ably suppose that thu trainers OF Constitution meant
/ that it should be understood in the way the
Constitution of the United States was; and as und
that Constitution controversies and disputes betTeen
the United Sites and its citizans had not been rerd
TO the courts it is reasonable TO conclude that i Was
not intended that disputes CONTROVERSIES Between che
Confederate States and their Gzsns should of neeeesty
| be referred to the courts under ours.
But there are other grounds upol which the coBsti.
tudonaKty Of the act of Congress in question may be
| sustained.
The Constitution Of the Confederate Safes does lot
require that when private property is ;aken for public
uses compensation shall be made at the time when tie
proIerty is taken; that panssLop shall be
made by tue scs which directs authorizes the
impressment. Il oay provides that the compen alton
| shall TO just.
am, therefore, far from being prepared to say thai
an act for the impr2s of private prop contain
ing provision foS fensation to the owner, would
therefore be unconstitutional snd null and void;
would LpronounCe i, 10 be sos If compensation were
providedfor by any act passed before the taxing Of
| the property.
Tie oRi cr might, in such a case apply to the Gov
eminent for compensation and rely upon It's justice MS
Is done by persO who have claims against it. in great
many other instance3
Chancellor Kent appears to have blen Of opinion, at
the time when hs commentaries written, tha. COM
pensation for properly taken mus; be made, or ten
dersd, when the propeity is seized; (Ken's Common
tare,, "a volume page SS9) and Judge Tucker 10 the
case the Tuckahoe Canal Company, (llth LIE 60, 10
ncnes 70 the opinion thai ''the law which nvades The
| rights oud provide the indemnity"
There are however, many authorities the other way.
| Bloodgood u.s. the Mohawk and Hudson Railroad Com
| plny, IA Wendell, 5l) Wheelock Us Ptitt a Wen
dell $50; Rogers as Bradshaw, go Johnson, 1856 y
Jerome us Ross, (7h JohnsOn's Chllcery Reports $780,
| If an act of Congress passed au lorzing the
impfessn Of property, but saying noihisg OF any
indemnify; and six mouths terSardl another act We're
| 81 prbvde excepLonabc mode OF asc rtaiaGg the
value of tile property aud making compensation for it
aud afterwards an impressment should be made under
| that act-I cannot stp1ose, for moment, that any
court in the ConfedeFacy would gran injunction upon
the ound that provision for indemnity was made in
the authorizing the seizure. II ihls be so, then it
clear that an acs for Ae mpTessm ut OF properly woul
OF be null and void bIesuse il nigh, not contain sIy
provision Tor the payment OF dagages to the owner.
T. tion, act o. Congress nader which, and by yr-
tue Of which private property should be seized would
not be Did because it might contain provision Tor
tie Naturalization Of the owner il would no. be void
because a provision for that purpose contained in il
might be inadequate
Application for redress might be made 10 the Lesis-
ature, as well in the as in the her II tho
owner should choose 10 accept the compensa ion Of
| fered.
The weight Of author ty seems decidedly in favor of
the opinon IL at uuder provision in the Constitution
Of State, like that in the Constitution of the Contcd
stes, with refer TO properly taken forpubic
rses il is not Necessary at Gle payment for should
shout brecace be concurrent VIII, the taking CT the
| oneFty.
tB coigo,d ~. Toe M hawk and Huison Railroad
| Company, II, Wendell, 81 same case Is Wendell,
Case u.s.. Thomson 6 Wsudsu, 684; WillyArd HAmil
ton, Z oaio ReEor part I'd Iags ILL., Tuckahoe Ca
MI Company Us. Tuckahoe Railroad, IL Leigh, AZ;
James yer tnd -KalaNha Compa y Us. Anderson, II
Ugh, 27s; R. read Company Us. DAVIS, ID Dsyereox
| A. les North Carolina Reports 45l)