Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-09-06

Much more absurd yerlld 1t have appeared had
1.-THE privilege been 1,,parte by general order of
the United States IS institute suit and realize,
upon execution ag ainst defauit1ng publlc agent
or q debtor, where the cause had arisen between
the 10th of December, 1860, and the 18Th May,
1855. Butthe expediency OF criminal prosecutions
lis at least fully lodged intha discretion OF the
lcommanCer in the reconstruction district as that
of collecting debts. Is it to be understood fhat
the punishment of counterfeiters of the national
currency, robbers of the United States mail, etc
through the insrumentality of the national courts
lin the Carolinas-is conducted by tribunals deri-
ving their uris LECTION from the forbearance Of Ex-
ecutive agents There seems to be no probability
that the order III question contemplated nsur-
patton so gross, and so perilous to the good name
of n loyal officer. Could it have been anticipated
| that upon loose implication from all order pro-
mugatod by military officer, charged within a
circumscribed locality, with anomalous civil duties
under provisional system OF restorative eglsia-
ton, the judicial establishment of the Republic
was to conceive itself ousted of jurisdiction,
stripped Of authority, and degraded to subvervi-
ency? Was It expected that the Judges, in conse-
u.cace IF such Implication, would unfalthtully
iuln their backs upon + titioners for justice 1t
seems not The Construction which applies the
order in question to the courts Of the Union, is
evidently after-thOught. The order Is dated
llth April. On the 9Th June the Chief Justice
opened the court in Raleigh That he publicly
announced in substance, for the information OF ali
parties concerned, the occasion OF seating him
self Oh the bench, that it incompatible 20ttc
the apt7toriy of the national judiciary to sit ochere
u military authority eristet echich could impede its
process. and that acas solely IN consequence Of
itte fact that no such Hary authority then existed
that he felt sc'0'"g to hol1 at court was RENDERED:
notorious by general publication in the newsp2-
pers at the time. The order expressly forblds the
institution prosecution of certain suits. The
court was held after the solemn publication }
the bar and the people referred to, and the suits
in question herein prosecuted, all il open
contempt of the order and of all others tending to
hinder the constitutional Independence Of the ju-
dietary. Yet, until after the departure of the
presiding justice from the locality, no steps, as
far as l have information, We're taken to enforce
this order in the premises
| With the validity Of the order, operating
upon the uCcatures Of the States, whose reSus-
citation has been coniided to the management o.
Major General Sickes, and especially, with the
oXpediency Of It, the present matter IL not III the
least concerned.
Respectfully submit that the case is one of
those which lie within t purYiew of the statutes
i'll force for the punishment OF persons who OBJ
strGct the process of the United States, and is
simply the case Of high misdemeanor legally
contemplated. But in view Of the responsibility
OF the principal offender and the corresponding
danger the higher dignity of the law, l under
stand that it is deemed necessary, in thus laying
before your Excellency the facts and documents,
to an0eX to the foregoing statements some cit d
tion5 and reflections, which appear to the under
signed to benefit the grave occasion of incipi-
cut attack by arms upon the Department OF Jus
tice.
DOCTRINE OF CIVIL SUPREMACY.
1t is respectfully suggested as a principle, upon
which difference OF opinion cannot be anticipated
in this country, that there is riShtfu authority
here which is not derived from the Constitution
and laws of the United States.
1t would seem to be highly impairment to at
tempt to establish the proposition, and almost as
Ilmpertinent to argue tins necessary result. viz ::
that all military authority must be mcdlatcy or
! directly impaired by, and consequently depend
ent upon, the civil authority. Action by military
persons therefore, which is outside Of this principle
must be unlawful andH done with intent to resist
that principle, embodied in the Constitution and
statutes, such action ifOver and with arms is trea
sou against the United States. Military power is
but d form, III which the civil, which Is the only
authority. manifests itself in action. i conflict
therefore, between the civil and military authority
of the same sovereg1tyls logically impossible, un-
less through the fault of agents, either civil
military. The laws OF country must and the
ministers Of those laws may, be in harmony; but
they may not; and this from innocent or from cul-
pablo motives. These principles are OF the ut
most importance to public ORDER and have been
SO recognized by politicians OF every school, and
partisans OF every faction Of note from the fOuu-
datOu of the Republic Sure Y, political party
will repudiate none can exclusively claim, these
| essential conservative principles. No candid per-
son would hesitate to accept their substance
ndisputable :; and may thus eliminate at the
outset most Of the eXtraneous matters tending to
compIlcate the unfortunate collision which has
occurred and may be warranted, l think, in i'll
Quring whether it Is anything in law but misde-
neanor in violation of the laws III force for the
furtherance Of the judicial power?
Put the high rank of the principal offender, as
before suggested, and the sautary public objects
| to which his cXhorbitant action would probably
be ascribed, no less than the great magnitude OF
tn" Eowcr with which he could support his error
should he feel jus :itied in such course, cir
cumstances which give the occasion an exraor
binary character, and inspire the undersigned
with that sense, both Of its deicacy and import
ance which demands the introduction here of the
principles OF the subject, as pronounced by stand
ard authorities.
POWER AND SPHERE OF THE JUDICIARY.
Chancellor Kent says f'The judicial power of
| the United States is, i'll point Of origin and tide
| equal with the other powers of Government and
is as exclusively vested in the courts created by
or in pursuance of the Constitution, the lcgis-
lative power is vested in Congress, the eAecu-
tive power in the President Il Comm, go,
291)
The Federaist, No. IS, is an elaborate and lu-
minous exposition of the central idea that /" the
complete independence of the courts Of justice is
peculiarly essential in a limited constitution
| Mr. Justice Story says " The Importance Of
the establishment Of judicial department in the
National Government has already been incident
ally discussed.* The want Of it constituted one
of the vital defects OF the Confederation. And
every Government must, III its essence, be unsafe
and unfit for a free people where such depart
ment does not exist, with powers coextcnsive with
the legislative department. Where there is no ju-
diClal department to interpret pronounce and eX-
ecute the laW-to decide controversies, and to en-
force rights-the Government must either perish
10y its own imbecilty, or the other departments Of
Government must usurp powers for the purpose
of the commanding obedience to the destruction
Of liberty" q Story Const, S1574)
caI department: ITO ,Ie people atlarge such an
ms tituton is peculiarly valuable, and 1t ought to
be eminently cherished by them. On its firm and
independent structure they may repose with safe
ty, while hey perceive III 1t faculty which is
ly set in motion when applied to- but which, when
thus brought into action, must proceed with COM
petent power, if required to correct the error or
subdue the oppression of the other branches Of
Government" Qbid S157G)
And further "Ihe trainers of the Constitution,
having these great principles in view, adopted
two fundamental rules with entire unanimity :
first, that national judiciary ought to be estab-
lished; secondly that the national Judiciary ought
to possess powers coextensive with the Legislative
department." Ibid, S1577.)
The convention which framed tie Constitution
voted unanimously for the perpetual and invinci-
Bile independence of the judicial department.
journal of the Convention, Ed. 1908 PIP. 100, 1888
! The Supreme Court Of the United States saws
1.-The object of the Constitution was to estab-
lish three great departments Of Government the
Legislative the executive. and the judicial depart
ments. The first was tc pass laws, the second to
approve and execute them, and the third to ez-
pound and enforce them (Martin VS.. Hunter,
Wheaton 329.)
| Authority on this point is uniform, that the
above may conclusively establish the sanctity the
dignity, and the authority of the national depart
ment Of justice. President Washington ''consid-
cred the Judiciary the chief pillar upon which our