The New York herald., 1868-03-31

voso or ootn houses In due form, veto by
The PreeidenS reconsideration by both houses
Ana passage by two-thirds vote. The consti-
asion substitutes this reconsideration and passage
- an equivalent TO the Presidents signature After
that he aud all other officers must execute the law
whether IN fact constitutional or not For the Pres-
he thought It Observation-Disclosures after he aaa
vetoed It for that reason, would, In effect,
De ior nlm TO execute his veto and leave
the law unexecuted. IL may be said he may do this
ct his peril. True; but that peril is. be impeached
for violating his oath Of ONCE, as s being done
generally the welfare OF any considerable portion Of
the people, had been commonly or as usage de-
therefore imperative, there might seem to be some
palliauon II not justification. TO the Executive TO
its consttutlonality testeI u BY o'u1 the court
Is possible to conceive OF nagrant case Of un-
eonstitutonality as to be such shadow OF jusinca-
Aon TO the Executive, provided one at the same time
eonceives an equally fagrant case OF stupidity,
ignorance and imbecny, or worse N the Repre-
United States; but both conceptions are so rarely
possible and absurd as not to furnish ground
Has the Supreme Court SO frequently declared
the laws OF Congress IN conflict with the con.
ground for belief or hope even, that the coars 5rs
viii do so In given instances think may safely
assert q legal fact that since the first decision or
the Supreme Court till the day OF this arragnment
no law passed by Congress affecting the general well
fare has ever, by the Judgment OF that court, been
SOnalty as the groundwork OF Its decision. In three
eases only has the judgment OF that court been inu
W.
the constitution, and they were cases affecting the
court itself and Its own duties, and where the
negatives Touching privileges and prerogatves
has been the shipwreck OF many a wholesome law.
1t B the sore spot the sensitive nerve OF all tribunals,
parliamentary or judicial. The first questioning
the validity OF lew Of Congress is Hayburns e Dallas
A0e) where the court decided upon the unconstitu-
ttonaty OF the act OF March 90, 1892, Statutes ut
Large vol p. 244, which conferred upon the court
she power to decide upon and grant certificates Of
invalid pensions The court held that such power
n
IN original jurisdiction, the court receiving all
ne original jurisdiction from the provisions OF the
ngibe were 1t not explained In note to the case In
she United States vs. Ferrara Us Howard, p. so, re-
porting United States vs. T0dd decided February II,
11o4. We learn however, from both cases the cause
Of this unintelligiby Of the decision in Hayburn's
suit Court in New York, the judges being OF opinion
Mat the law could not be executed by them
yet determined to obey it until the case
could be. adjudicated by the. whole court,
sAey therefore, not to violate the law, did execute
It as commissioners until It was repealed, whi-h
was done the next year. The judges on the cir
suit in Pennsylvania a. united in letter to the
Executive most humby apologizing, with great re-
gret tnat their convictions of duty did not permit
them to execute the law according to its terms,
and took special that this letter should accom-
pany their decision 80 that they might not be mis-
understood. Both examples 1t would have been
gress. The next case where the court decided
upon any conflict between the constitution and the
Aw Is Gordon the United States, tried In April,
1895, seventyone years afterwards, two justices dis
senting without any opinion being delivered BY the
court. The court here dismissed an appeal from the
Court OF Claims, alleging that under the constitu-
si0n no appellate jurisdiction could be exercised
ever the Court OF Claims under an act Of Congress
which gave revisory power to the Secretary Of the
Treasury over decision Of the Court Of Claims.
Inis decision is little satisfactory, as 1t Is
wholly without argument authority cited.
The next case is er pd,te Garland "A Wal
lace, 1881, known as the Attorneys Oath case,
where the court decided that an attorney was not
Ofhcer OF the United States, and therefore might
practice before that court without taking the test
cath. The reasoning OF the in that case would
throw doubt on the consututonaty OF the law OF
Congress, but the decision OF the invalidity Of the
law was not necessary to the decision OF the case,
s.r yss ,s., No this case will be o.
the oath be administered to the attorneys IN obc
AIcnce OF the law, until 1t came before them IN
Osst oteved the iaio up to the time it was set aside.
they did not violate It TO make test case. Here Is
the case, which he will wish he had followed may
venture TO say, when he hears the Judgment OF the
Senate upon the impeachment pending.
There are several other wherein the validity Of
acts OF Congress have been discussed before the
o none m sHe vs. aeo mas
Cranch, 1917, Chief Justice Marshall dismissed the
case for want Of Jurisdiction, but took opportunity
- deliver q Gliding opinion against the adminstra-
ton Of Jefferson before he did SO. In the bred Scott
ease 50 familiar to .p the public, tn. the court t
the government and people lecture upon
Sheir political duties. In the case OF Fisher
w. Blight e Cranch, 37s), the consttutionality Of
Q law was very much discussed, but was held valid
BY the decision OF the court. In United States
Coombs IA peters, 72), although the power TO de-
clare law of Congress In conflict with the consttu-
ttsn was claimed in the opinion OF the court
arguendo, yet the law itself was sustained The case
of Pollard Vs. Hagan Is Howard, 2l2), and the two
cases OF Goodtt lie VS.. Kibbe % Howard, 9Th Haet
va Beebe rs Howard, 25h growing out OF the
validity OF two private acts OF Congress; but
careful examination VII show that It
was the operation and not the validity OF the acts
which came ia question and made the basis of the
decision. Thus II viii be seen that the Supreme
Court, in three instances only have apparently by
its decisions impugned the vality OF an act OF Con-
gYess because OF conflict with the constitution, and
In each case the question OF the rights and pfero-
gatives OF the court, or OF its Officers has been In
controversy The cases where the consiitu0nalty
Of act OF Congress has been doubted IN the obeT
dicd OF the court but not the basis OF decision
ere open 10 other criticisms In Marbury ys. Mad
son. Chef Justice Marshall mad just been serving as
Secretary o. state IN an opposing administration nj TO
Chief Justice. In the Dred Scott case Chief Justice
Taney-sclectcd by General Jackson TO remove the
deposits because his bitter partisansbip would carry
hfa through where Duane halted and " as removed
d~iisercd ine opinion OF the court, whose o0iey'
dxfa launcd the lame Of dssensi0n which led 10 the
evil var through which the people have. just
pN~-ea; and against tnst opinion the Judgment
tae country has long been recorded
M&.A ~ pare Garland was decided, the counl ~
was ssi emerging from a conflict of arms tue pas
usson the bench, ana some OF the Judges JUS
h,g from other service OF the government and from
tne bar, brOugat with them opnloas. But forbear
Am ucadng upon dangerous ground. Time mas
nss yet laid ITS soening and correcting hand long
enough upon TINS decIsson 10 allow me furtner 10
comment upon II In this presence.
Mr.. President and senators, can it be said that
the possible doubts thrown on three or four acts OF
Congress, "a To their constitutonaity, during n
judicial experience OF seventynve years-hardy one
V generapion--s sufficient warrant 10 Tue Pr,.l-
dent OF the United States 10 set ASIDE ana violate any
act Of Congress whatever, upon the plea that he ts-
lieved the supreme Court would hold II uncoJsti'u u
tt0na when case involving the question should
come before It, aud especially one much discussed on
ON its passage, 10 which the whole mind OF tie conn
try was turned during the progress VI the dscnssion
up0n which he had argued with all his power
his constitutional objections and which, after care
ful reconsideration, had been passed his veto
Indeed, Will you hear an argument a Senate OF the
United States, a majority OF whom voted for that
very bill, upon its constitutionality the trial OF
executive officer for wifuly violating IL before II had
been decided by any court. Bearing upon this qres-
ton. however IL may be said that the President re-