The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-05-01

IL
ask attention TO the opinions expressed by some Of
the statesmen who took part In this dt Termination OF
what the effect and Tue mporsan. enecS OF t9e con-
overlooked its Importance on one side or the other,
and beg leave to read from the life and works of
the elder Adams, volume !, page AS. Mr.. Eyarts
read from the work IN question the paragraph giving
the history of the question as TO the Presi-
dents power to appoint and remove officers.
Ames TO his correspondent, an intelligent
lawyer in Boston, in reference to the same subject.
Mr.. EvartS then contlnued:-lt will thus be seen,
Senator's that the statesmen whom we most revere
regarded this as SO to speak, construction of the
constitution important as the framing OF il itself
had been; and now the question arises whether a
law OF Congress has introduced a revolution in the
doctrine and in the practice Of the governmental
legislative construction binding one and being
entitled to no respect from the changeableness Of
legislative constructions, in the language of the
honorable Senator from Oregon; and whether a
doubt, whether an act in relation to the constitu-
tiOnaty OF that law on the part of the executive
department Is a ground OF Impeachment, the
doctrine OF unconstitutional law seems to bel speak
II with great respect-wholly misunderstood by the
honorable Managers In the propositions which they
law, for 1t is not rule binding on him or upon
any one else. His conduct in violating 1t or in con-
conditions of duty and for violation OF these eth
cal and civil conditions he may be responsible. II
marshal OF the United States executing an unconsti
tutiona fugitive slave bill, enters with the process
and the authority OF law, It does follow that resist
ance may be carried to the extent of shooting the
nr tna o9a no; pei"se at v,oat,on
there can be no violation Of it. it
Is because civil duty does not permit
too, If a subordinate executive Oflicer who has
nothing but ministerial duties to perform as United
constitutional law, undertakes to deal with the ques
uOn Of its unconstiuonality while the ethical and
civil duty on his part is merely ministerial, and
while he must either execute 1t III his ministerial Ca
pacty or resign MS Office, he cannot, under proper
ethical rules, determine whether execution OF the
law shall be defeated by the assistance of the officers
ms personal rights or Official emOluments then
without violation OF the peace he may raise
question or the law, consistent with
all civil and ethical duties. Thus we see at once Jbat
brought face to face with the fundamental
propositions this case and ask your attention to
passage from the heterdJist, at page $40, where
very vigorous discussion by Mr. Hamilton OF the
question Ot unconstitutional law, anu also to the
Of Marbury against Madison, Couch, 175, which
| snail beg TO include in the report oil my remarks
The subject is old, but it is there discussed with
luminous wisdom which may well dsplace the more
Inc0nsderabe and loose views which nave been pre-
scented in debate here Undoubtedly 1t is question of
very grave importance now, for the different depart
ments OF the Government, legislative, judicial and
executive, are hot at liberty TO act in relation TO
constitutional laws. Judicial duty may perhaps he
pian-to wait for a case, 10 volunteer no advice to
exercise no supervision; but as between the Legsia
ture and the Executive even where the Supreme
Court has passed upon question, III one of the
eravesG constitutional points for public men TO de-
te1nine, where ana how the Legislature may raise
the question again ny passing law against the de-
csl0n oi The supreme Court, and whether the EXecu
i've may raise the question by undertaking an cXccu-
tive duty under me Constitution AGAINST the decision
OF the supreme Court and against the determina-
tion of Congress. We in his case, have been accused
of insisting on eXfravagant pretens. ons. We have
never suggested anything further than this for The
case only requires II, That, whatever may he the
doubtful or dehata5ie region i'm the coordinate
authority for the Inherent departments Of the gov
eminent 10 judge for themselves OF the constitution
aty or unconstilutonallty OF laws, that When The
President OF the United States in common with the
hunbest citizen, hn'ls a law passed over his right,
ana binding on ms actiun IN the matter OF his right,
thcn al reasons 81 duty 10 SELL to the public 10 the
consti,ution, 10 the law, require thai the matter
shall be put The train of judicial decision, III
Orucr mat the light OF the serene wisdom Of the
supreme Court may be shed upon IT. to the end that
Congress even may reconsider its action ana retract
It's cncrOachnents on the consultation. But Senators
viii no. nave forgotten that General Jack son. his
celebrated controversies with the wing party, claimed
thai no department. of the government should re-
c,ive its final ana necessary and perpetual eNclu-
SION and conclusion Oh constitutional questions
tue Judgment even Of the supreme Court, ana that
under the obligation OF each ones oath, yourselves
as Senator's yourselves as Representatives, and the
President az Chief Executive, each must act in new
juncture or IN reference 10 a new matter arising TO
raise again the euestlQa Of constitutional author
iiy Now lei Ine read a shorl passage, in
which General Jackson in his protest sets this
forth. read from the debate on the fugitive slave
law, as conducted in this body In the year 1852,
wnen the honorable Senator from Massachusetts
(Mr. SUinncr) was Spokesman and champion OF the
right of each department OF the government to judge
o. Inc cOnst'utionality OF law and el duty:-"But
whatever may be the influence of this Judgment
that is, the Judgment Of the Supreme Court in the
case Of Prigg-as rule for the judiciary IL cannot
arrest our duty as legislators. Here adopt with
entire assent the language OF President Jackson In
his memorable vetoin 1882 Of the Bank OF the United
Staes-ll the oriql9p % the Supreme Court covers
tle Whole ground OF rms act II ought nor
The government The Congress- the Executive
and the court must, each Tor ITSELF be guided by It's
own opinion Of the constitution. Every public Oli-
Ger who takes al oath to suppOrt the constitution
swears that he viii support IL AZ he understands IT,
the duty Of the House OF Representatives., OF the
Senate ami Of the President to decide on the cOnsti
mhonaiity Of any bill or resolution winch may be
presented 10 them for passage or approval as u h OF
the supreme Judges when it may be brought before
them Tor judicial decision. The authority OF the SUI
preme Court must not, therefore, be permitted TO
control Congress or The Executive, but to have
only such influence as the force Of their
reasoning may deserve,n With these authoritative
words OF Andrew Jackson I dismiss the subject.
Now times change and we change win them; never
theless principles remain, duties remain. The
powers OF the government remain. Their
ord nation remains. The conscience OF men remains
ana everybody who has taken an oath, everybody
who Is subject To the constitution without taking
oath, 10y peaceful means has right to reverse the
constitution IN derogaiOn Of constitutional law and
any legislative law or any judicial authority which
shall deny the supremacy Of the constitution in ils
power 10 protect VINO thus conscien ,iously thus
peacefully raise questions for determination
IN conflict between the constitution and
written constitution or with the maintenance
OF The liberties OF the people ~ established nv and
dependent OH tue preservation of written constitu
ton. Now let us see whether on every ethical con
stitutiona and legal rule the President OF the United
states was nos the person on wh0n the civil Tenure
act operated not ~ an executive officer tO carry out
q Jaw but ~ one Oi the coordinate departments of
the government, over whom in that Official relation
the authority ol the act was sought 10 he asserted.
The language Il gcncrIl:"Evcry removal from Office
contrary the provisions OF this act small be high
misdemeanor.n Who could remove from Office hut
the President Of the United Statesr VINO had author
ityY VINO could lie governed by the law hut hey And
n was not Official constitutional duty, not %
personal right, not u matter Of personal
value or choice or interest with him. that he acted
when, therefore, II il sought and claimed thar by
force Of the legislative enactment the President OF
the United states shall not remove from oifce
whether the act Of Congress was constitutional or
not, nc was absolutely prohibited from removing
from Office, although the constitution allowed him
To- do 80. The constitution could moi protect him for
the act. but that tue act of Congress scizng upon
him coud draw him in here by Impeachment and
subject him 10 judgment Tor violating the law,
although maintaining the constitut on. AMI that Inc
constitution pronounced sentence Of condemnai ION
and iDlany upon him for having worshipped It's
authority and sought To- maintain II, and that the
tl la. TINT