The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-28

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or more States.I For the tirst they vest |
ed Congress with the war power; for
the second with the power 20 call out
the militia. The fact that the last
was provided demonstrates, as |
think, that the first was not in. |
tended to meet the emergency OF
an tnsurrection. Andthis view is con-
nfmed by the opinion of this court |
IN the prize cases, q Black, 66S, where
Mr.. Justice Grier, as the organ of the |
court, declares that Congress t'cannot
declare war against State, or anv |
number of States, by virtue OF any
clause in the Constitution." II the de. |
cision Of this tribunal is conclusive up.
on the question, this decision must 6e |
held to settle it; for II Congress cannot
use the war power. against a State, il
cannot, by means of that power, sub
due its people and extinguish the State.
Whether, therefore, the late insurrec-
tfon assumed in its progress such a
magnitude as rendered It necessary to
apply to it tbellRws Ofiwar, cannot give
Congress the authority to annihilRte the
States in which 1t prevailed. The duty
OF Congress is to preserve the Govern
ment, and as that Is constituted of
States it involves the duty TO preserve
the States. The power to suppress in.
surrections was given to preserve and
court has held, war cannot be declared
against a State, itwould seem to follow
that Congress could not use that or any
other power with which it is vested to
annihilate a State and BubIugate its Cit
izens as enemies, which they could do
through the war power, II they were
not prohibited the use OF that power
since the termination of the insurrec.
ton has taken different view, and in
support OF II has mainly relied upon
other parts of the opinion referred to.
The court there ruled that the insurrec-
tion having become a war the incidents
of war belong to II; that the parties
were to be considered as rbelligerents;
that the laws of war in relation to the
paroling and exchange of prisoners
We're applicable to 1t, as in the case OF
an International war; that the insurreo-
uonists during the continuance of the
war were TO be dealt with as enemies,
and not as traitors. On this authority
! Congress maintains that the right OF
conqueAtis also incident to such a war.
1t is not TO be denied that there is some
| plausibility In this view. My impress
sion is that the decision In this respect
has been misunderstood. / understand
the court as holding that If the war tor
minated in the success OF the Govern
ment that the parties engaged In It,, ale
though TO be treated as enemies during
the conflict in order. to mitigate its hor-
rOrs, might then be treated as traitors.
II am right in this then 1t cannot be
true that at the termination of the war
the people of the South who engaged in
1t remained enemies; for IL that char
acter continued they cannot be traitors.
All, ] suppose, that the court meant,
was that upon grounds of humanity
during the progress of the war the in
surgents were TO be considered as enc.
mics, but that when defeated by the to-
tai suppression of the rebellion they
became subject to the laws of the cOun-
try, and might be punished under them.
But is the decision of this court of
such question conclusive upon Con-
gress2 This is a propositisn upon which
different opinions have prevailed
among statesmen and jurists ever since
the adoption of the Constitution. There
is no positive provision In that instru-
ment upon the subject. All that the
judicial clause. does is TO vest in the
courts of the Union jurisdiction over
tall cases in law and equity arising un-
der" the Constitution, &C., &c. Their
judgments are of course concluslve of
the controversy as between the parties;
but what effect they are to have upon
other parties or upon the other depart
ments of the Government the Constitu-
has been proved in many cases in this
cOurt,l that u decision upon a question
of constitutional law Is conclusive even
upon the court itself in subsequent
cases. They have often reversed them.
This being so, it would seem that such
decisions cannot be binding either upon
Congress or the Executive. That the
court should be at liberty to re-examins
and decide them differently If satisfied
n l. MT = m nth Ia.
partments of the Government should
be absolutely bound by them would be
most unreasonable. 1t is certainly true
that the three departments of the Gov
ernment IN respect TO their several
| powers were eiutended TO be indepen-
dent of each other. This is not the case
| If the judicial department can control
the others in the discharge of their re.
spective duties. iH The President and
each member Of Congress Is required to
take an oRthto support The eCOnstitution,
and many of their, powers necessarily
\ involve It's meaning. Is not, then, each
| Of them TO Construct as he thinks right
after consulting every source of infOr-l
nation, or is he bound to tOonstrue 1t as
4 the judicial department. shall have done
4 in any case before II? The question is
discussed with great ability in the Bank
veto message of General jackson of
July 10, 1892; and the doctrine have
4 stated is in terms conceded to be correct
| by Mr.. Webster in his speech on the
| message, delivered in the Senate on the
llth OF that month. In referring to II,
e'tIti true that each branch OF the
Legislature has an undoubted right, In
| the exercise OF itsfunct ors, to consider
4 the constitutionality Of q law proposed
| to be passed - "The President has the
same right when q bill is presented for
his approval; for he is doubtless bound
4 to consider in all cases whether such
bill is compatible with the Constitution,
and whether he can approve 1t consist
entlyaWith his oath OF ofifce. - CVol. >
| Webstsr's Works, 4SS.) uh - lsi.ig ,gpz
| 1 content myself upon, this point by
| referring to both authorities,
4 But Whatever may be the opinion Of
4 this court upon helquestionl one thing
submit Is clear, that each House OF
Congress has the exclusive power 70 de-
/ eide whether State is entitled TO repre-
4 sentatiOn or fniot;z or 20 STATE IL more
! correctly, whether a. community Is "A
Il StRtefo that purpose within tho meanr
/ ing Of the Constitutiond They may, del
| eide wrong: but is not the decision conhI
/ Iclnsivs, upon, the Othel Departmental :
/ How is # 10 be revisedhRnd reVersed3
4 The Constitution authorizes no appeRl,d
| and there Is no way TO bring IL before
this court. If the denialiof the right Is
/ placed upon the ground, Gas, we know 10
4 Is and as is known conclusiVely by
their legislation of March last that the
4 Southern States are not. States entitled
\ 20 representation, 1t would seem to fol-
4 low that the ground OF the denial Is as
conclusiYely settled! as the denial itself.
II this view be correct then the COM
| plainant Is not State competent 10 sue
in this court. For such apdrpose she
must be a State Tor every other under
the Constitution, and therefore II the
congressi ional decision settles the ques-
ton that she Is not for that of being
representedi she has no right TO sue,
] With these observations I leave this
II x : Vim