The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-22


Fourth Circuit, are allotted TO the CHIEF
Justice. South Carolina, Georgia,
Florida, Alabama and Mississippi con-
stitute the Fifth judicial Circuit, and
are allotted 10 the late Mr.. Justice
Wayne. Louisiana, Arkansas ana
Texas are allotted to the Sixth Judicial
Circuit, in which is vacancy on the
bench. The Chief Justice, in the exer-
else of his duty, has recently held
Circuit Court in North Carolina. II
North Carolina is not a State in this
Union, the Chief Justice had no au-
thoTity to hold court there, and every
Judgment ard decree delivered by him
IN that court WINS eoron' non J"dice anu
void.
Another ground on which these re-
construction acts are attempted TO be
sustained is this: That these ten States
are conquered territory; that the con-
stituIiOnal relation in which they stood
as States toward the National Govern
ment prior to the rebellion, has given
place TO new relation; that their ter
ritory is conquered territory and their
citizens conquered peoplei in this new
relation Congress can govern them Dy
military power.
A title by conquest stands on clear
grounds. 1t applies only TO territory,
goods, or moveAble things, regularly
captured in war, called booty, or, II Ia
ken by individual soldiers, plunder.
There is not a foot of the land in any
one of these ten States which the Uni
ted States holds by conquest, and only
such land as did not belong to either OF
these States, or any individual owner.
l mean such lands as did belong to the
pretended government called the Con-
federate States, these lands we may
claim TO hold by conquest. AS to all
all other lands or territory, whether be-
longing to the States or individuals, the
Federal Government has now no more
title or right to it, than it had before the
rebellion. Our own forts, arsenaIs,
navy-yards, custom-houses, and other
Federal property situated in these
States, we now hold, not acquired by
purchase or condemnation for public use
with compensation to former owners.
We have not conquered these places,
but simply repossessed them.
If we require more sites for torts' Gus
tom houses or other public uses, we
must acquire the title to them by pur-
chase or appropriation in the regular
mode. AT this moment the United
States, in the acquisition of sites for ma
tional cemeteries in those States, ac-
uuires title in the SAME way. The Fed
eral Courts sit in court houses owned
or leased by the United States, not IN
court-houses of the States. The
United States pays each of these States
for the use of its jails.
Finally the United States levies its
direct taxes and its internal revenue
upon the property in these States, in
cluding the productions of the lands,
within their territorial limits, not by
wHy of contribution in the character Of
a conqueror, but in the regular way OF
taxation under the same laws which
apply TO all the other States of the
Union.
From first 10 last, during the rebel
IL 0TN NIr.s r,tN sNf
States to the lands and public buildings
owned by them, has never been dis
turbed, and not II foot of it has ever
been acquired by the United States,
even under title of contiscaIion, and
not IA foot has ever been taxed under
Federal law.
In conclusion, 1 must respectfully
call the attention of Congress 10 the
consideration of one more- question
arising under this bill. 1t vests in the
military commander, subject only TO
the approval of the General of the army
of the United States, an unlimited pow
er 10 remove from Office any civil or
military officer in each of these ten
STHtes. and further power, subject to the
same approval, to detail oraPpoint any
military officer or soldier of the United
States 10 perform tue duties OF the Oth-
Ger so removed, and to fill all vacancies
occurring in these States, by death,
resignation, or otherwise. The military
appOintee must be required to perform
the duties of "a civil officer according to
The laws OF the State, and as such is
required to take an oath, and Is for the
time being civil officer. What Is his
character? Is ne civil officer of the
State, or civil officer of the United
States2 Where is the Federal
which authorizes his appointment
by any Federal officer? II, how
ever, he is to be considered civil
officer of the United States, as his APP
pointment aud oath would seem TO in
dicaIe, where is the authority for his
appointment by the Constitution? The
power of appointment of all officers Of
The United States, civil or military,
where not provided for in the Consti-
tuition, is vested in the President by and
with the advice and consent of the Sem
ate, with this exception, that Congress,
by law, may vest the appointment of
such inferior officers as they may
think proper, in the President alone, IN
the courts OF law, or in the heads of de-
partmenIs. But this bill, if these are
10 be considered inferior officers, with
in the meaning of the Constitution,
does not provide for their appointment
by the President alone, or by the courts
OF law, or by the heads of departments;
but vests the appointment in "A subor-
dinate officer.
Soir we put this question, and fl K the
character of this military appointee
either way, this provision of the bill Is
equally opposed to the Constitution.
Take the case of soldier appointed
to perform the office of Judge in one of
these States, and as such TO administer
the proper laws of the State, where is
the authority to be found in the Consti.
tuition for vesting in military or an
executive officer, strictly judicial func-
tions to be exercised under the State
Iaw7
It has been again decided by the Su-
preme Court OF the United States, that
the acts of Congress which have at
tempted to vest executive power in the
judicial courts, or in Judges of the
United States, are not warranted by the
Constitution. If Congress cannot
cloIhe a Judge with merely executive
duties, how can they clothe an officer or
soldier of the army with judicial du-
ties over citizens of the United States
who are not in the military or naval
service?
So, too, it has been frequently decided
that Congress cannot require State
officer, either executive or judicial, to
perform any duty enjOined upon him
bya law of the United States. How
can Congress, then, confer power upon
an executive officer of the United
States to perform such duties in a State?
II Congress could not vest in Judge
OF one Of these States any judicial au-
Lhority of the United States, by direct
enactment, how can it accomplish the
same thing indirectly by removing n
State Judge, and putting an officer of
the United States in his place?
To me these considerations are con-
elusive of the unconstitutionnlity Of
al, nF I