Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1868-02-05

Register claims this as precedenC unuer
which Congress may require e two-thirds
fact that the Constitution enumerates in
the one case, excludes the same interpreta-
ton to different .erms in the other case.-l
We need not quote the rule of law to the
REGISTER. The reason for different basis
in the Court of Impeachment, is no less
clear:sThe Senate, sitting as Court of Inn
peachment, is both Judge and Jury. If a
jury should be unanimous In its verdict.
certainly vote of two-tbirds should be
required in Court of impeachment. Sol
of Courts Martial, and every other case
mentioned by tine Register.
The remaining objsc sction of the Register
goes to. the second section, which, we now
proceed to examine. -. - -
), The first paraghraph enumerates the
cases and controversies to which the judi
ciary power shall extend. A great many
columns have been expended on the word
case. Its meaning, with special reference.
TO this section, is comprehensively stated
by Story, on page 4S5. 1646, OF his Con-
stitution. If that Is not comprehensive
enough, it would seem that the word con-
trore5sies might cover whatever remains. =
The second paragr aph gives the Supreme
Court original and sO1e jurisdict on in cel-
taineases latter which we have, tile follow
ing provision: sin all the other cases be-
fore mentioned. the Supreme. Court shall
and fact, with. such exceptions, and under
such regulations as the Congress shall
make" Observe that the Supreme Court is
absolutely clothed with appellate jurisdic-
tion in all these cases, and it is put beyond
the power OF Congress to take it away; but
Congress may make. such exceptions As to
review of law and fact, aud may prescribe
such regulations as it may see fit. Now it
| seems little less than astounding that clear
headed men should argue that the power to
regulate" gives authority to take d,ody en-
tirely the appellate jurisdiction OF the
Court: so that clause wtiich is intended to
direct Congress to provide how parties may
have cases appealed or carried up for re-
view, is supposed to permit Congress to say
that such cases shall not be appealed or re-
viewed by the. Supreme Court.
The word exception" might give more
color for this. view, if it were pot clearly
confined to the term "both as to law and
fact" These words, without power in
Congress to limit their application, would
give the Supreme Court power TO review
the decision of jury on, mere matters of
fact, and thus in effect destroy the validity
of their verdict and reduce to mere form
the right of trial by jury. 1t was thought
desirable to retain the power of reviewing
the fact as well as the law, in cases of
equity, and admiralty and maritime iuris-
diction. Eliiott's Debates. 2S3. There
fore, instead of excluding the Court from
review of .'the fact" or enumerating the
cases where the power of review was con-
sidered desirable, it was left to Congress to
provide exceptions" by law. But this
gives no authority to deprive the Court of
its appellate jurisdiction.
Neither can the word ''regulate" give
Congress power to say how many judges
shall vote for a decision.jf the Constitution
establishes majority as TO the number COM
mi nd hot ehNvy IN N
cOnclusiyely.
The next and last paragraph of the Judi
ciary Article will show how impossible it
would have been to vest the Supreme Court
with original Jurisdiction in all cases. Ger
tain cases must be tried in the States where
the persons charged were resident. The
very reasoning adopted to show why the
State Courts should not be entrusted with
such cases is equally good to show that the
inferior United States Courts should not
have final Jurisdiction. There may be as
many different rulings on the same ques-
tion as there are Courts. There could be
no Uniform administrationo of Justice. Nor
is it entirely certain that Congress, by TAX
ing away the appellate jurisdiction of the
United States Supreme Court, will not
leave it in the power of any District Judge,
at his own sweet will and pleasure, free
from all appeal or review, to decide any
act of Congress unconstitutional and void
within his bailiwick. Then other legis
lation will be necessary, to GUST him of his
jurisdiction, and reverse his decision by act
of Congress. - = sS<ss -7-.
What, then. should be the policy of Con-
gress? Plainly, 10 square its legislatisn by
the Constitution to fix it upon general
principles, and not upon the exceptional
case. Legislating TO-: an exigency is nee
essary.l 1t is not Within thnswit of man to
devise aiperfect system OF ofgovernment. and
exigencies must arise, and must be met.
1t is not this, but the legislating from ex-
cepIions, and not from general rules, that
we object to-. And, while we freely admit
that the Representatives of the people in
Congress are nearer the people than any
other Department of government is, yet
we cannot prevent ourselves from feeling
thatsnot only Congress but even the god
like People themselves are one and all sub
ject to the Constitution, even as the miser-
able Chief Justice and his associates on the
Supreme Bench are. sr