The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-09-02

dicia sstabishment of the republic was 10 IT,
self oused Of jurisdiction, stripped Of snho.y snu w
Judges In consequence OF such implication, would
unfaihfully their backs upon ptuhones LOT JUS
tees IL seems not The construction wnich ~pphes
the order 10 oes,ion 10 me courts OF the Union ev
| IDENTIFY an alierb0ught The order IS dated iltn OF
April ON the 6th OF June the Chief Justice opened the
| court in Raleigh. That he paoicly announced IN SUB
stance for the Information OF all parties concerned on
| the occasion OF seating hirnsei on ne oencn, snst
national judiciary TO sit where military authority ex
| listed which could impede its process aud that l. was
soev In consequence OF the fact that such military
authority then existed that he felt willing to hold that
court rendered notorious by general publication in
the wspapers 81 the time The order expressly forbids
The institution prosecution OF certain suits The
held after the solemn publication 10 the bar
and the people referred TO- and the suits in question
herein were prosecuted all open contempt o! the
order aud OF all other orders tending hinder the
stitutional Independence Of the Judiciary. Yet until
after the departure or the presiding ocor from the 10
cay, no steps, "a far rs have information taken
70 enforce this order in the premises
odcatures Of the States whose resusctaiion has been
connded 70 the MANAGEMENT Of Major General Sckes,
matter Is not In the lsss. Concerned - ''' ''''
respectfully submit that the case 10 one Of those
which lie within the purvisw Of the statutes In force for
the punishment OF persons who 0bruct OF the
United States, and s simply tho OF high misdo
meanor legally contemplated But in view OF the re-
spending danger 70 the higher dignity OF the Law,
derstand that - deemed necessary. IN thus laying
annex 70 the FOREGOING statement some citations and
reflections which appear to the undersigned 10 bent the
grave occasion OF an ncpient attack BY arms upon the
department OF Justice
It 10 respectfully suggested q principle upon which
difference Of opinion cannot be anticipated in this couo
try that there Is rghtfu authority here which 10 not
derived from the constitution and laws Of the United
states It would seem to DO highly impertinent to
pertinent to this necessary result viz-That
all military AUTHORITY must DO mediaelv or directly
civil suihoTy Action by military psrson. Therefore
which Ia outside OF this principle must be unlawful and
II done with intent TO resist that principle embodied
In the constitution and satutes such action, n overt
and with arms. IS treason AGAINST the United states
Military power Ia but form in which the civil, which
the only authority manests Itself in action contact,
therefore, between the civil and the military authority
OF the same sovereignty Ia logically impossible unless
through the fault Of public suts, either c;v mill
tary The laws Of country must and the ministers OF
those laws may be, In harmony but they may not-snd
this from innocent or from cnpable motives These
principles OF the utmost importance to public order
and have been 30 reco0nz d bv politicians OF every
school, and patsans Of every faction OF note from the
foundation OF the republic. Surely no political
party will repudiate, as mono can exclusively
claim, these essential principles No
did person would hesitate TO accept their substance
indspu,abls; and may thus eliminate at the outset
most Of the exraneous matters tending to complicate
the unfortunate collision which has occurred and may
be warranted think. in inquiring whether is any
thing in Law but misdemeanor In violation OF the laws
In force for the furtherance Of the judicial power
But the high rank Of the principal offender, az before
suggested, and he sautary public objects 20 which his
exorbant action would probably be ascbed, no less
than the great magnitude OF the power With which he
could support his should he feel justified In such
course, are ercumstan which give the occasion
raordnary character acd inspire the undersigned
with that sense both Of ts deicacy and importance
which demands the introduction here Of the principles
OF the subject pronounc by standard authorities
POWER AND SPHERE or THE JUDICIARY.
chancellor ksot says:-"The judicial power OF the
United States in point Of origin and title equal with
the other powers or government and Ia as exclusively
vested in the courts created by in pursuance OF the
constitution as the legislative power is vested in Con-
zoo, POI ''"'' - NV
The Fss-alia No. rs. is an elaborate and luminous
exposition OF the central idea that the complete indie
pendence Of the of justice peculiarly essential
in a limited nstitaton" .l .
Mr.. Justice Story says-"The Importance OF the
establishment OF judicial department In tho national
government has Already been incidentally discussed
The OF constituted OF the vital defects of the
confederation: and every government must In its
be unsafe and unfit for free people where
such department does not exist, with powers
tensive with the legislative department. Where there
Is no Judicial department to interpret pronounce
and the laws-to decide controversies
and to enforce rghs-the government must either per-
ish by its imbecitv the departments OF
government must usup powers for the purpose OF
mandng obedience. 70 the destruction OF liberty" Il
Tho authority says, speaking Of the judicial de-
partment:-"To the people At large such m institution
cherished by them On its drm and dependent
ture they NAV repose with safety, while they in
u faculty which 10 only set motion when applied to-
but which, when thus brought into action must proceed
with competent power II required to correct the
emmentn ibid, 1,576l And further-" The trainers
tbeoonstuton having these great principles in view
adopted two Fundamental rules With entire unanmity:-
coextensive with the legislative department" tIetd
l,577l
unanimously for the perpetual and invincibe ndcpen
OF the judicial department. journal Of the Con-
TSs pr oD Of Inc United States
object OF the constitution 10 establish three great
*. the
laws the econd to approve and execute them and the
third to expound and enforce them" Martin Hun
faY Il ian nm
Authority on this point u 30 uniform that the above
may conclusively establish the sancy, the dignity and
President Washington ''considered the Judiciary the
chief pillar upon which national government must
the Supreme Court addressed each one sepa-
rately, in which he expressed his sense OF
the vslue Of their Independence OF operation
and solicited their instruction lsee vol 10 Sparks
Writings OF Washington pp. IS, SCI could not with
humility conclude this particular topic with my
own general impressions concerning H. than by OFFERING
them In the unimpeachabe counsel OF Judge Story
Nothiug" said that great minister OF justice, "s
face In republics than for demagogues under artful
pretences 10 stir up combinations against the regular
exercise OF authority These selfish purposes too
often interrupted by the rmnes, and independence of
upright magistrates not TO make them ali times hostile
10 power which rebukcs and impartality which
condemns them. The Judiciary, the weakest point
In the constitution on which 70 make attack,
dircc. their assaults; and triumph here,
achieves lasting victory over the eonstitu,ion itself
Hence in republics those Who prof, by public
cOmmOtions or tue prevalence faction the
enemies OF regular and independent administration
OF justice. They spread ali Of decisions order
msead the public mind and excite the public preju
dics Thcy know full we'll that without the aid Of tue
people their schemes must prove abortive, and they
therefore employ every act to undermine the public
and 70 make thu people the instruments OF
subverting their rights and libsrtiss" q Story.
Const. Gill
We must then. ss We see recognise the judiciary as
the third part Of the government And lot us now In
qulre what " the sphere Of It's authority This Is the
the question in what branch OF public business
q 10
co Institution ordains:-
The judicial power the United shall
and ip such inferior Con-
sess from time time ordain and establish. cart
~
The judicial power shall 70 all Law aud
equity arising under this constitution the laws ofthe Uned
states and made which shall be made.
their authority 70 all Affecting smbassAdors other
public ministers aud consus 70 all OF admiralty and
maritime iurisdcon 10 controversies which the United
shall be controversies between
between State
of different States between citizens
claiming grants
and ciiena thereof