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

justice 1t seems not. The construction whict
applies the order in question to the courts Of tn
Union, is evidently an after-thought. The ordel
is dated 11th April. On the 9Th Of June the Chic
Justice opened the court in Raleigh. That h
publicly announced, in substance, for the informa
ton OF all parties concerned, on the occasion O
seating himself on the bench, that it was incom
patble with the authority of the national judiciary
to sit where military authority existed which
could impede its process, and that it was solely II
consequence Of the fact that no such miitar.
authority then existed that he felt willing to hole
that Court, was rendered notorious by genera
publication in the newspapers at the time. The
order expressly forbids the institution or prosecu
ton Of certain quits. The Court was held aftel
the solemn publication to the bar and the people
referred to, and the suits in question herein were
prosecuted, all in open contempt Of the order an6
of all other orders tending to hinder the constitu
tional independence of the judiciary. Yet, unit
after the departure Of the presiding justice from
the locality, no steps, as far as have information
we're taken to enforce this order in the premises
With the validity of the order, as operating upon
the judicatures Of the States whose resuscitstion
has been confeed to the management OF Major
General Sickles, and especially with the expedien-
cy Of it, the present matter is not in the least con-
cerned.
I respectfully submit that the case is one OF
those which lie within the purvew of the statutes
in force tor the punishment Of persons who OBJ
struct process OF the United States, and is simply
the case OF a high misdemeanor, legally contem-
plated. But in view OF the respectablity of the
principal offender, aud the corresponding danger
to the higher dignity of the law, understand that
it is deemed necessary in thus laying before your
Excelency the facts and documents, to annex 70
the foregoing statement some citations and refiec-
tions which appear to the undersigned to beft the
grave occasion OF an incpient attack by arms upon
the Department Of Justice.
THE DOCTRINE OF CIVIL SUPREMACY.
1t is respectfully suggested IS a principle upon
which difference OF opinion cannot be anticipated
in this country, that there is no rghtful authority
here which is not derived from the Constitution
and laws Of the United States.
1t would seem to be highly impertinent to at
tempt 10 establish that proposition, and almost as
that all military authority must be immediately OF
directly impaired by, and consequently dependent
upon the civil authority. Action by military per-
so 81, therefore, which is outside OF this principle,
must be unlawful, and if done with intent to re-
sist that principle, as embodied in the .Consti,
tuition and statutes. such action, il overt and
with arms, is treason against the United States.
Military power is but form in which the
civil, which rs the only authority, manifests
itself in action. a conflict, therefore, be-
tween the civil and the military authority
of the same sovereignty, is logically i'm
possible, unless through the fault Of public agents,
either civil or military. The laws OF country
must, and the ministers OF those laws may, ne IN
harmony; but they may not; and this nom inno-
cent or from culpabe motives. These principles
are OF the utmost Importance to pubic order, snd
have been so recognized by politicians OF every
school, and partisans Of every faction OF note, from
the foundation Of the Republic. Surely no pohti-
cal pcrty will repudiate, as none can exclusively
claim these essential conservative principles. NO
candid person would hesitate to accept their sub
stance as Indispensable; and we may thus eliminate
at the outset most Of the exraneous matters tend
ing to complicate the unfortunate collision which
has occurred, and may be warranted, think, in
enquiring whether it is anything in law but mis-
demeanor in violation Of the law9 In force for the
furtherance Of the judicial power?
But the high rank Of the principal offender, as
before suggested aod the salutary public objects
to which his exorbitant action would probably be
ascribed, no less than the great magnitude OF the
power With which he could support his error,
should he feel justified in such course, are cir-
cumstances which give the occasion an eItraordi-
nary character, and inspire the undersigned with
that sense, both of its delicacy and importance,
which demands the introduction here OF the prin..
ciples of the subject, as pronounced by standard
authorities,
POWER AND SPHERE OF THE JUDICIARY.
Chancellor Kent says: ''The judicial power Of
the United States is in point OF origin and title,
equal with the other powers OF Government, and Is
IS exclusively vested in the Courts created by or in
pursuance ofthe Constitution, as the Legislative
power is vested in Congress, or the Executive
power IN the President Il Comm, 29O, 291.(
The Federaist, No. 78, is an elaborate and lu-
mnous exposition Of the central id,a that "the
esss ssssn % IF & ahs 0
Mr.. Justice Story says "rhe Importance OF the
OF judicial department in the Ma
tional Government has already been incidentally
discussed. The want Of it constituted one OF the
sital defects of the Confederation. And every
Government must in its essence, be unsafe and
unfit foF free people where such department
does not exist, with powers coextensive With the
legislative department. Where there is Judicial
department to interpret, pronounce, and execute
.he law-to decide controversies, and to enforce
Sqhts-the Government must either perish by Its
,wn iwbeciity, or the other departmen.s o. GOV "
commanding obedience TO the destruction OF
liberty" e Story Const., 81, 574.
The same authority says, speaking OF the Judicial
department.: 'To the people at large such an insh-
+ Pssa5yd SS SSaa1 he% a66 on is 9s snS
dependent structure they may repose with safety,
While they perceive in it 8 faculty which is only
set in motion when applied to, but TMG9, Rnen!
,hus brought into action, must proceed with COM
petent power, if required to correct the error OF
;ubdpe the oppression OF the other branches OF
Ibid, 81 576)
And further: fiFhe trainers of the Constitution,
having these great principles in yisy, adopted two
rules with entire unanimity; Hrst,
hat national judiciary ought to be established;
secondly that tie national Judiciary ought to pos
,ess powers coeytensive with the Legislative de-
oartment" Ibid, g., SHl 80 ......;,,
,oted unanimously for the perpetual and inyipci-
Die Independence Of the Judicial department.
Journal OF The Convention, Ed. 1908, ,,pp. lpO,
1887 l.I
The Supreme Court OF the United States says:
"The object of the Constitution was TO esls pnsn
hree great departments of Government: tne
legislative, the executive, and the Judicial de-
,artments. The first was to pass laws, the sc,
,ond to approve and execute them, and the tnird
o expound and enforce them. Martin us. Hull
er Wheaton 329.) u III
Authority on this point is 80 uniform, that the
lignity, and the authority Of the nstonal depart
nent of justice. President Washington Soon
,idered the judiciary the chief pillar upon which
,ur National Government must rest, and imme-
lately upon the organization Of the Supreme
Court, addressed to the justices respectful letter.
,aying previously addressed each one separately,
n which he expressed his sense OF the value OF
heir independence OF operation, and solicited
heir instruction. (See vol. 10, Sparks Writings
If Washington, PIP. S5, &c., could not with greater
humility conclude this particular topic, With my
OWN general impressions concerning it, than by
,ffering them in the unimpeachable counsel OF
Judge Story:
"Nothing," says that great rainister Of justice,
is more facile in republics than for demsgogpes,
lnder artiul pretences, to stir up combinations
against the regular exercise of authority. THOR
selfish purposes are too often interrupted by the
;rmness and independence Of upright magistrates,
lst to make them at all times hostile to power
which rebukes, and an impartiality which con-
lemns them. The judiciary, as the weakest point
n the Constitution on which to make an attack,
g. therefore, constantly that to which they direct
heir assaults; and triumph here, aided by any
nomentary encouragement, achieves lasting VIC
ory over the Constitution Itself. Hence, in re-
,ublics, those who are to profit by public commo-
iops, or the prevalence Of faction, are always the
,nemies cf a regular and independent administra-
Jon Of justice. They spread all sorts Of delusions
public prejudces. They know full yell that with
out the aid Of the people their their schemes must
art to undermine The public confidence, and to
make the people the Instruments OF subyerting
thelr own rights and liberties" e Story Const,
s1611.)
We must, then, as we see, recognize the Judic-
ary as the third part Of the Government; and let