New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1868-12-22
uNoERTAINrY OF TIE LAW.

So "A UNCERTAINTY OF TEE hAW.7R--
The recent decision of Judge Under
wood, which has drawn so much notict
throughout the country, begiHs to elicit at
tention in New Orleans in Its application
to judicial affairs. Judge Underwood, OF
: the return of writ of habeas corpus, de
clared, in the case OF prisoner under sen
tenco of death upon a conviction had be
. fore a Judge disabled by the fourteenth
amendment, that the judicial actions o.
such Judge were simply utilities. The
Governor Of Virginia respited the party,
who if not held by legal commitment, or
Indictment would probably have been re-
leased on the habeas corpus. The conse-
quences of the disregard which has been
shown to the fourteenth amendment are
very forcibly shown in this case; and BUSH
ness men are quick to perceive the position
IN which it places their affairs, if any they
unfortunately have to transact, in the
courts. The judgments obtained, and
proceedings had before ineligible
Judges and Justices of the Peace,
are simply utilities, liable to be enjoined
or undone, with damages, if enforced. All
the advantages Of this state of affairs enure
to defendants; plaintiffs lose their time,
costs, counsel fees and ultimate heavy
damages, besides having their cases in worse
condition than if no proceedings were had.
These remarks apply with particular force
to about half of the District Courts. None
of the cases of the Justices of the Peace
have as yet been mooted, as no discussion
of their eligibility has been as yet brought
before the public. Neither the Judge of
the Federal Court or Supreme Court of
the State held Offices before the war, and
subsequently gave aid and comfort to the
rebellion, except in the single instance of
Judge Howell, who was relieved by Con-
gress upon the doctrine that his holding
the office of Judge in Confederate times
might be construed as giving aid and COM
fort. There is, therefore, no question ex-
listing in relation to the legality of the ac-
ton Of the Federal Court or the State Su-
preme Court.
According to Judge Underwood's deci-
sion, the seats of all Judges resting under
disabilities are ipso facto vacant. We have
in Louisiana a State law which vacated
all seats Of such as did not file sworn
statement that they did not come
under the constitutional amendment.
This was made a prerequisite to obtain
commissions, or in case Of contested cleo
ton to permit the sitting Judge to con-
tinue in his franchise till the commission
could be legally issued. But it now ap-
pears, especially since Judge Underwood's |
decision, that there can be no such a thing |
as provisional occupation of the Bench,
where the Judges are Ineligible. The seats
being tpso tdeto vacant, there can be
no holding over even until the case be de-
cided, for the actions of the Judges have
no force or validity even as de facto Off
cers. Statute number thirty-nine Of |
1868, therefore, has no application,
and Statute number twenty-seven,
passed August 10, 1868, requires the Exec
utiVe to interpose by way of appointments
to fill the vacancies. This action seems to
be necessary in view Of the alarming con-
sequences of an interrgnum in judicial af-
fairs, otherwise an adjournment of the
courts in question would be necessary un-
til Congress can take action by relieving
the Judges. No injustice could possibly
be done, by appointments to fill
the vacancies which thus already ex-
lst for the former incumbent
though thus placed on the outside, could
quickly recover his position if by the pro-
,eeding of quo ,oaranto he is able to es-
+ablish his exemption from the effect of the
fourteenth amendment. The State law
thisjust method of putting the
disputed officer GA the outside, because
Alternatives are easy to prove, while mega
ives are not. 1t is more equitable, there
ore, for him to have to make out his own
Ease, than sit in the seat and DEFY others to
make out a negative. #s.
Judge Underwood's decision shows that
It is unsafe to continue proceedings under
judges whose eligibility is questioned, for,
Il ineligible, all proceedings under them
are null, whether they are commissioned
Or not, and whether they have taken one
Dr. all Of the oaths fled in the Secretary of Il
States Office. There is no such thing as a
Judge de factO, or provisional, or holding
over under this ruling. The effect will be
% upset proceedings Of the past year in
several Of the country parishes, and as far
rs it will reach will produce consequences
'imilar to . decision that greenbacks are
rot legal tender under the Constitution.
Il is not probable that the latter decision
will ever be made, but 1t is next to certain
hat Judge Underwood's decision, that in
slligIble Judges can not perform judicial 4
functions, since the Constitutional amend
nent viii form a part OF jurisprudence
hereafter, which no one win controvert.
Il