The New York herald., 1868-03-27
,rrea in the House amendments ena ordered COM


diction had been taken aways He denied that 1t |
had ever been done; yet 1t was proposed to do |
that here. He recited the circumstances attending
the McCardle case up the decision of the Circuit
Court of Mississippi that McCarde must be remanded
to the military authorities from which McCardle |
decided that such trials by military courts were
illegal in time Of peace. McCardle took the position
that his liberty guaranteed by the go constitution had
the Supreme Court under the provisions Of the con-
stuton for trial by jury Was not that bringing his
SS"'n was not atiecteds If Gccardls had unjustiy
criticised Congress % what erin, crime ). sc, nad ne ne
Supreme Court said there should be constitutional
trias This was denied him. although foreigner |
pose citizen OF Indiana went down to Mississippi
and committed what o military tribunal chose TO
consider an offence and then appealed s to the Circuit
from the decision OF that court sending him back to
military dungeon was to be denied to the Supreme
Court-an appeal which had been thought necessary
only last year. II he mr. Hendricks had occasion to
go South, and expressed himself as he doubtless
to the policy Of Congress, would Senators say if he
were arrested by the military authorities and ap-
peaed to the Supreme Court he should be sent back
willing that the Supreme Court should pass upon
their Legislatures More than half of the people OF
the constitutionaity OF their legslation yet they
States. States They % had estabiished system Of des.
was established by Haynau though he whipped
women in the Streets When Senators denied
made law providing for trial by military trlbu.
nal, 1t not OF necessity case for the Supreme
Court to decide which was the awY II was an effort
to strike down the judiciary, as the Executive had
been stricken down in the last year. DO that and
all the power Of the country would be In the hands OF
five Judges out OF eight whom Mr.. Lincoln appointed,
and were they not confirmed with Mr.. Chase, q
party leader, at their head? Yet Senators could
tribunal Of their own organization when the
liberty OF a citizen was involved When he voted for
law he did SO in the expectation that 1t would stand
all the tests including that Of the Supreme Court.
Marshall and Taney cofncided in that view.
Some SENAToR-And Jefferson.
Mr.. HENDRICKS would not quote politicians but
the highest judicial authorities. He went on TO say
that one department Of the government should be
check upon another within the sphere OF the const
tuition. If this were partisan question Senators
could not act for themselves. He would not vote for
a woa not mad for me &
cussion on this bill, and that he had not therefore,
been prepared.
the rights of men were very much involved In this
BILL though the appeal to the Supreme Court had
been dispensed WITH r for ahseeGmar.ers OF century
fence taken cognzance OF by the military authorities
was arrested tried and then allowed to go on bail;
and he certainly was not therefore laboring under
very great disabilities. He (Mr. Stewar had in that
view made reference to the Supreme Court being
overburdened with business. 1t was as much beyond
sruction as 1t was beyond the power OF the humbest
individual; therefore they were not afraid OF the
Supreme Court. The presumption was that the Su-
preme Court would obey the law, which was clearly
ON the side OF Congress-.
Mr.. HOWARD (rep.) of Mich, asked what the charge
against McCarde had beenP
Mr.. WILLIAMS rep.) Of Oregon, said he was
charged with attempting breach Of the peace and
Mr.. HENDRICKS asked If an article in q news
paper was breach Of the peacef
Mr.. WILLIAMS replied that 1t might tncite to 1t.
fQem.1
was on four grounds:-Frst disturbing the public
peace; second melting nsurrecfion third, libeling
general Of the army; fourth, obsructhg the Recon-
struction acts.
Mr.. STEWART asked why, II the Supreme Court had
jurisdiction reconstruction and power to de-
clare that had ceased, 1t had not exercised 1t
before II the act could be construed to make mill
tary chieains OF them, the sooner 1t could be re-
Mr. JOHNSON said the constitution provided that
habeas corpus should not be suspended In time of
peace. The Supreme Court had decided In the MILL
gan case that military tribunals could not try a
civilian when peace prevailed In the United
problem oi to solve. Many ofacers Of the govern
ment including, perhaps. the President, might
be held liable under State laws Tor the necessary acts
done during the war, and he In common with all the
rest of the Judiciary Committee thought the act Of
1857 was eminently proper II was specially provi-
ded that purpose not for the protection OF rights
in the Southern States, as the Senator from Illinois
had said.
passed chiefly for the protection OF colored cit
zens In the South, to protect them rom oppression
under State laws.
Mr.. JOHNSON replied that it was comprehensive in
its character and covered all such cases. The ques
tion in the McCardle case was strictly Judicial and
ot te nn %a
that 1t was to be decided by the courts, and not by
the military. The Circuit Court having re-
the Supreme Court under the act Of Feb.
ruary 1867. The Senate held that that
NOT not the the case habeas corpus originating in
the Circuit Court, but only embraced cases In that
court upon appeals from District Court. He had
made motion to dismiss the case from the Supreme
Court for want OF jurisdiction, and made an argu-
ment to that effect; but he failed by the unanimous
vote of the court, the Chief Justice saying, '.we
case lies;' and again saying, 1--WE are salts
fled that this court has Jurisdiction to re-
view the decision OF the Circuit Court" We,
therefore, thought the Senator's opinion that the
court did not vote that 1t had jurisdiction under the
Senator had urged upon them that the Circuit Court
from which the appeal was taken had no jurisdiction.
The court answered that that was question TO be
decided when the case was heard on It's merits.
They disposed OF another objection In the same way.
The Senator intended that by the second section Of
the act OF 1867 certain cases. such military offences
had been excluded from the operation Of that act.
In regard TO men who had been giving aid
and comfort to the enemy during the war, they
declined to decide that question until they should
hear the case when II they concluded that McCar-
die under that class they would refuse to In
erfere. lie Cdr. Johnsonl believed that term would
be found to be law offences committed by those In
the military service OF the government and as the
law was passed IN feDruary, 1867, ana the arrest
was made the following November, McCardle could
not have fallen under that denomination claimed.
The war had long been over; and in point
OF fact he was arrested because Of the
offence specifically stated In the return and
nothing else. He (dr. Johnson) entertained no doubt
that In the opinion OF the Supreme Court the
was before them under the authority OF the act OF
February 5, 1861. lie had great confidence in the
ability OF the Chief Justice who he thought, had
made that point clear lie had great esteem for the
Senators who voted for this bill, but they must par
don him for saying that he regretted IL was passed
without sufficient knowledge on the part OF those
who, II they had understood IT, would certainly
have opposed 1t. That its purpose was not
to be inferred from its title was manifest.
on the 11th of March, 1867, this bill was reported In
regard to appeals In several cases, which was unob-
jectonabe. He detailed the circumstances OF It's
amendment and passage He would not say IL was
the object that would be unparliamentary; but the
effect was to conceal its purpose when there should
have been disclosure. Bills like this not to be
passed on party grounds; Il would lpt comport with
the dignity OF the Senate. The constitution assumed
that Congress would establish Supreme Court He
hoped they were not coming upon times when the
Supreme Court TO be abolished-useful as II had
been TO the preservation OF all institutions OF the