The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-09-03

;;anut,S tirn ltleir Dacks upon petitioners ic
justice 1t seems not. Tho construction whi,
applies tho order il; question to tho conrts of IA
Enioh, Is eyidentiy an atter-thought Tho ordc
na,icS aatSd ith APRIL On tho 9Th of June tho Chic
publicly announced, in substance, for tho informr
tlon OF all parties concerned, on tho occasion {
patible with tho authority of tho national ujioiar
10 slt where q military authority existed wliicl
could impede its process, and that It was solely Il
authority then existed that hc felt willing TO hoi
that Court, was rendered notorious BY genera
pabincaaion ia IN the newspapers at tho time. Th
tioh OF certain suits. Tho Court was held aftc
the solemn publication to tho bar aud the peopi
referred to, ana tho suits in question horeii wcr
prosecuted, all Ill open contempt of tho urdor M,
OF all nther orders tondiDg to finder the constitu
tionni independence Of the Judiciary Yet, unit
ater thr departure of tho presiding Justice FROM
the locality, no stepH, rs far ave information
were taken to enforce this order in tho promises
With the validity Of tho ordor, as operating upol
tiio IMlcaturss Of tho States whose resuscitaiior
has been confided 10 the management OF Major.
General Sickos, and, especially with tho oxpedfcn
cy of the present matter s not in tho least con
l respectfully submit that the case il On, n,
those which lilo within tho purvew Of tho statute,
m force Tor The punishment Of persons who OBJ
| tho ease Of high lnademeanor, legally coutom.
plated But in Wow Of the respectfully. .of tho
principal 3fendor, and the corresponding danger
to tho higher dignity OF tho Law, understand tRat
II is deemed necessary, in thus laying before your
| Exceency tho facts and documents, to annex ia
ons tho ioregGng statement some citations and reicc
grave occasion OF mn incipisnt attack BY arms upn
| tho Department Of Justice.
THE DOCTRINE OF CIVIL SUPREMACY
| It in respectfully suggested as principle, upou
which difference OF opinion cannot DO anticipated
in this country, TINT there is rightfn authority
| here which is not derived from the CONSTITUTION,
and laws Of tho United States.
It would scom 10 be highly impertinent 10 at
tDmOt 10 establish lhRt o,d ol,,o,t ~,
impertinont to argue this necessary result, viz:
that all military authority must bo irlme dately or
upon. tho civil authority. Action, by military por-
sO..s therefore, which is outside of this principle
must be unlawful, and il done with intont to ro.
tuition nnd statutes. such action, il overt and
with arms, is treason against the United States
Military power is but a form in which the
itself in action. q conflict, therefore, be-
tween the civil and tho military authority
OF th9 same same soyoreignty. is logically i'm
either civil or military. Tho laws OF a country
must, and tho ministers OF those laws NAV, bo in
harmony; but thoy, may not; and this from inno-
cent or from cupablo motives. These principles
arc Of the utmost Importance to public order and
have been 40 recognized by politicians OF every
o s o 81 epeT aoSn of note Iom
cal party will repudate, as mono can exclusively
claim, these essential conservative principles No
candid person would hesitate to accent their sub
stance as Indispensable; and we NAV thus climinate
at tho outset most Of the ertraneous matters tend
ing to complcate the unfortunate collision which
enquiring whethor It is anything in law but mis-
emcauor, in violation of tho laws in forco for the
fnrthcrnnce Of the judicial power2
But the high rank of the principal offender as
before suggested, and the salutary public objects
to which his eIorbitant action would probably he
ascribed, no less than the great magnitude Of the
should he feel justified in such course are cir
cumstances Which give the occasion eItraordi-
nary character, and inspire the underslgncd with
TINT sense both OF its decacy and Importance,
which demands tho introduction here OF the prin-
ciples ot the subject, as pronounced by standard
authorities
POWER AND sPHEEE OF THE IuDIcIany,.. -,
Chancellor Kent eays 'gn;: n,- origin mud title,
as exclusively vested in the Courts created by or in
pursuance OF the Constitution, as tho Legislative
power is vested in Congress, or the Executive
The Fcdoralist, No. 7s, in an elaborate and lu-
minus exposition Of the central idea that "tl!e
complete independence OF the courts of justice is
peculiarly essential in limited constitution"
MIR. Justice Story says "'Ihc Importance Of tho
establishment OF judicial department in tho Ma
tionai Government has already been incidentally
vital defects Of the Confederation. And every
Government must in its essence be unsafe and
unfit for u free peopn where such department
Legislative department. Where there is no Judicial
department to intcrpl ct, pronounce, and execute
tho law--to decide controversies, aud to enforce
rights Government must other perish by ts
own imbecility, or the other departments of Gov
ernmcnl must usurp powers for the purpose OF
ling obedience 70 II; the destruction OF
The same authority says speaking Of the Judicial
department: "To the people at large such an nsti-
tuition is peculiarly valuable, and i ought to be
dependent structure they may repose with safety,
vhilo they porceivo in 1t faculty which is only
set in motion whom applied to, but which, when
0Cttn
petent power, if required to correct tho error or
suLduo the oppression of the other branches OF
9sSsr Hd 81 Sas Of the Constitution
having these great principles in Wow, adopted tTo
fundamental rules with entire unanmity !: first,
TINT national Judiciary ought to be established;
secondly, that tie national judiciary ought to pos
sess powers eoextensiye with tho Legislative de-
partnient." Qbid, 81, ST.,
Tho convention which framed the Constitution
voted unanimously for the perpetual and nvinci-
ble independence of the judicial department.
i3ou.Eal of :he Convention, Ed. 1903, PIP. 100,
fEo suprcn,. ,to:~. of the United States says:
1.-The object OF tho Constitution was to establish
three great departments OF GSgernnient: tho
legislative, tho executive, and the jua'fis. ,e-
cond to approve and execute them, ind The third
to expound and enforco them. tAsE'n Us. nun
ter, Wheaton 32e.
aboro may conclasyely establish the sanctity, the
dignity and tho authority OF tho national depart
mont OF Justice President Washington CON
sderad the judiciary the chief pillar upon which
our National Government must rest, and imLpe-
diatcly upon the organization Of the Supreme
Court, addressed to tho justices respectful letter.
| having previously addressed each one separately,
| in which he oppressed his sense OF the vnlue or
| their Independence or operation, and so]icited
| their instruction. tSee vol 10, Sparks Writingn
OF Washington, pp 3d. 9G). could not with greater
humility Conclude this psFticular topic, with my
| own general impressions consctping it, than by
offering them in the unimpeachsble counsel of
| Judge Story:
Nothing" says that great minister Of justice,
sis moro fice in republics than for demsgogues,
under artiu pretonces, to Stir up combinations
4 against the regular exercise OF spthorty. Their
fir1anoss and independence OF upright magistrates,
not to make thsln ct all times hostile to power
which rebukes, and an impartiallty which con-
| ienps them. The judiciary, SO tho weakest point
4 in the Constitution on which TO make an attack,
ia thereiofs constantly that to which thoY direct
thor assaults; and triumph hero, a!dea by anJ
momentary encouragement, achievcs lasting VIC
| tory over tho Constitution itsslf Hence, in re-
publlcS, th.oso who arc to profit by PUBLIC commo-
oncmies OF a regular gnd independent adminiatra-
ton of Justice They sEYcpd all sorts Of dolusions
In ordSr TO nlislcad tho public Mpd and exotic the
public prejulices Thoy know full well that with
out tho all nf the peoplo their schemes must
provo abortiSa and fhey, therefore: employ eyery
nrt to undermine tbe public confidence, and to
make tho people Tho Instruments oi suDSertne
tholr OWN rights md hhori:sg" Ihtafy conai.'
s16l1)
Wo must, thonr IA we SEQ, recognize tho Judici.
ary as tho third part Of tho Government; and lot
us now inquire what B the sphere OF its authority
This is the snmo az the question, in what branch
OF the public business Ia tho judiciary the supreme