The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-01-25
THE NEW JUDICIAL BILL.


every moment to tumble about the ears of its
architects, apd which they are attempting to
shove up by props resting in a shifting quick
sand. Invain they seek firm foundation-
the more they dig the more treacherous
becomes the ground on which they stand
The final result of all this will be, perhaps,
gulf of their excavating in which
they and their work viii be swal-
| lowed up together. In the meantime they
| go on in the endeavor to remedy defect here,
and to insert support there, the only effect
being to throw additional weight on the Aimsy
| edifce In other words, they are seeking to
| patch very dirty garment, with very rotten
| rags.
The last bill, reported by the Judiciary
committee of the House, evidently contem-
plates the inefficacy and insuficiency of the
previous bill, controlling, or attempting to
control the decisions of the Supreme Court,
| just as the military dictatorship bill presup-
| poses the ineficacy and insufficiency of the
| previous reconstruction measures. The bill
requiring the assent of two-thirds of the Su-
preme Court to decide the unconstitutionality
| object in view, because the court can decide
that act as well as any other to be unconstitu-
tional. Hence some other expedient becomes
necessary in order to save the reconstruction
scheme from the judicial slaughter, to which
it is being surely, but certainly led. This ex-
pedient is embodied in the new bill tele-
graphed from Washington yesterday morning
as follows:
BE al enacted. etc., That the appellate iurisdic-
ton of the Supreme Court of the United States
shall not extend to any act done, or which shall
be done, or 10 any proceeding had, which shall
be had, under and by virtue Of the act entitled an
| act TO provide for the more efficient government
of the rebel States, approved March 2, 1867, or
of the several acts supplemental thereto. Aud all
such cases low pending In said court, either BIZ
appeal or otherwise from any proceeding had ia
the premises in any district circuit court of the
United States, shall be dismissed by said Supreme
Court, and no record Of any proceeding had or
which might be had, under either of the district
commanders under either of the acts shall be re-
moved TO or reviewed in any other tribunal either
upon babeas corpus, quo Wsrranto or in any other
manner whatever.
This bill is based on the second clause of
the second section of article 3, of the Consti-
tuition of the United States which says:
'In all cases affecting ambassadors, other
public ministers and consols, and those in
which State shall be party, the Supreme
Court shall have original jurisdiction. In
all the other cases before mentioned the Su-
preme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions,
and under such regulations as the Congress
shall make"
Under this power to make exceptions as to
the appellate jurisdiction of the Supreme
Court, Congress, if the bill pass, claims the
right to deny any jurisdiction whatever to
that tribunal, in any and all cases arising
under the reconstruction acts; thus limiting
the decision of cases arising under those acts
to the district and circuit courts The object
evidently is to throw the decisions into the
hands of judges who are for the most part,
radicals; and, if the decision be against them,
to deprive it of the dignity and force attach
ing to judgment of the Supreme Court
But this construction of the power of Con-
gress, under the clause quoted, would imply
the power of that body to destroy entirely the
appellate jurisdiction of the Supreme
Court, and to limit its functions to
the class Of cases in which the Constitution de-
clares that it shall have original jurisdiction.
Thus the absurdity is reached that those
cases which are more important than all
others-those involving the constitutionality
of an act Of Congress--shall be decided by an
inferior court, and not by the highest tribu.
nal in the land In fact this is the very in
tent Of the act in question. 1t denies to the
Supreme Court the right to decide on the
constitutionality of the reconstruction acts,
and limits the decision of the momentous
questions arising under those measures, to
the lower courts, whose dicta would not be
regarded as law, except in the particular cases
adjudicated. In other words it is an attempt
to make the legislative branch of the govern
ment absolutely supreme, and to abolish any
means ofjudicial revision of its acts
In this view Of the case it would seem that
the clause. Of the Constitution in question
has quite another meaning than that attached
to it by the judiciary committee of the
House. When it is said that in certain
cases the Supreme Court shall have original
jurisdiction, and in certain other cases-with
such exceptions as Congress may make-it
means that the jurisdiction of the Supreme
Court shall, in one form or the other, extend
to all cases. In one class the jurisdiction
shall be exclusively, and without exception,
original in the other class it shall be appel
late, with such exceptions as Congress may
make. If Congress make an exception in
this class, then, as TO such exception, the
jurisdiction of the Supreme Court becomes
original, and not appellate. But Congress
cannot limit the jurisdiction of the court in
such a way as to deprive it of any jurisdic-
ton whatever; otherwise it could, as we have
already stated, confne its functions TO the
small number of cases in which the Constitu-
tion declares that it shall have original iuris-
diction. The practical results would be
legally and judicially monstrous and the
attempt, by such an expedient, to bolster up
the confessedly unquestional legislation of
the radicals, is the most infamous act Of
what Fernando Mood varv orflv calla1 81 chic