New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-14

a w
legislative, the executive, aud the JUDICIAL Nhich OF
these departments Yields the sovereignty OF the AneI
can people, Not any 81 one ina ree neo n nt IN
the nature OF things be one superior IN law aud III iact 70
one not accountable to the others, or either
Find that and You find the depositay OF the national
From the study Of English law, IT results, in my udg
ment that the judicial power granted by the COnsttu-
ton contained no authority TO declare an act OF the
National Legislature claimed 10 have been passed in
pursuance of its powers, void for whatever
tnctiOn between judicial and legislative power. The
former never includes the latter But in this case 1t must
include II II the claim OF the Judiciary be sustained ~
| is much legislative power 10 unmake q law as 10
make IT. The repeating power resides IN ana DSongs
exclusively to the endctng power No other can eec
repeal Any ATTEMPT, therefore by judicial tribunal 10
to a dead letter, is not judicial but legislative act
done under forms and through processes unknown 10 Inc
Tie fundamental positions tot the Supreme Court are
| in the following sentences Of its opinion
g." emphscay province and duy Of the judicial department
must Of necessity eIpourd and ucrpre, that II Two eoaact
with each other decide the operation Of each
law be IN opposition 70 The Constitution both ine law ano
decide that conomab tie law dresdg the Constitution
coDomaby tie Constitution diegarug the law the conr must
the very essence Of judicial duty"
The initial proposition here, "that Is emphacaly
the and duty Of the judicial department TO say
what the law is" while true IN sense, Is not appc-
purports TO statute is in form legal enactment, and
TO that extent say what the statute law Is bnt be-
yOnd that its function s merely 20 eXpOund and Interpret
the terms Of the statute The Congress is composed OF
Senators and Representatives each Of whom is sworn to
support the Constitution Authorized by the people to
exercise their highest sovereign attribute they are th9re
by invested with the sole and exclusive capacity and
right OF Judging and determining the necessity and pro-
prety without appeal from their decision save
10 their constituents This is too plain pro s.ton 10
need more than its mere statement Their sion on
those points has therefore the legitimate and u force
| OF Judgment binding ali persons and authOri-
ties continuing in force until revised by tie Congress II
SELF and subject TO review only by Congress or the pco-
pie The passage Of bill, therefore is OF necessity
II
consuOlal-ai Judgment dc re and de tac'o, rendered
by tribunal having exclusive jurisdiction OF the ques
tion in the first instance and competent TO render it,
From all thus presented in regard to the Judgment OF
that whether the position taken by the court in the fol
lowing susains its asserted rights depends at
last upon the authority and elect OF that Judgment Inc
court say:
"Ia law he fl opposition to the Constitutions both the law ,ni
decide hat case confpy to The law drarrg the Constitution
Or onioma6y to 1e Constitution l'Itgans the a" ,ue GTT u
the essence Of judicial duty"
AZ we have seen the passage Of an act nalR2Hy ana
judgment Of Congress in favor OF its consuonalty.
famed and executed only by revolutionary force II
70 quite impossible to regard II rs anything but
could he supposed that the question OF its
stuonaty would be allowed TO come before the courts
for their adjudication than that the Revolutionary Gov
of the late Rebel States would have permitted
court in those States pronounce Their ordinances
secession repuCnaut 10 the Constitution OF the United
States, and therefore void. But II II could
be supposed possible that Congress having entered upon
the work Of revolution, would suffer the cuuSttutOnaly
of its act To he passed iudcav then j. conceded
that tho would not De prcCudcd from holding the
unconstitutional, hut might adludge 70 TO be what
Congress itself proclaimed IT, revolutionary niTactoh
of the Constitution Then would ensue conflict between
the powers that Of Congress the one hand press
ing revolution, and that OF the courts on the other at
tempting Judicial power to stay It, II Is easy TO see
Bnt it is urged that giving to Congress the exclusive
right to Judge whether it, authorized 10y the
Constitution makes 1t in effect omnpotent and unles.
there be other tribunal TO revise the Judgment OF
Congress, IT Is IN fact omnlpotent rms 9eroh shonlu
receive fair consideration and answer. i Will endcayor
10 it, a. II has no force except uTon The by
pOthesls that the majority OF Congress may ne elha
regardless Of their oath OF Office, OF the Constr uto ana
Of the people 2l EVENT. al these ineScould be- u'
dietary moi the body to rectiy inc msdeeds OF congress
But II the exclusive right IN Congress 10 ddJuGEc ana
determine the cOustitutiOnay Of its acts would be
omnlpoence; WAat is lhat hEhof anu hoIo tAgIusNe
right claimed by the judiciary 10 reverse the judgment
of the peoples Representatives and substitute It's own
therefor as nai supreme ana HieISlSolSl Aaic I'm
chosen by the people, ard the Judges are NOT;
So f tbe o6grS invested With the essiiye soye
reignty Of the nation and the judges are not and u we
cal omnpotence am for that which springs from the
fountain of power the people and not for that winch
by the more than doubtful title Of their implication.
But il NAV be alleged that II Congress cannot
strained by the judiciary then private rights have no
protection This is an argument ut 10 be used III the
Courts II anywhere, but not IN Congress. II assumes
that would egsate IN violation OF private rights an
assumption which should share the fate OF al the 0her
discarded suppOstious OF wrong-dolug by Private
rights find as many and Jealous advocates in the two
Houses OF Congress be found elsewhere. ana are
as safe here from infacton they would be IN other
| hands Nay, l go further and cay that IN 40
! organized body IN this land do private rights
| receive more careful attention and patient con.
sideration In this. There is no disposition here 10
disregard much less to Invade them NE tendency an
the other way But were IT otherwise tha coud nor IN
vest the judiciary with power not granted 10 by the
Constitution. Again protest against This arguing OF
power into the courts upon the assumption nat 14Ress
may not exercise it. powers honestly and faithfully but
must be put under outside guardianship TO hold 10 the
| path Of rectude. Every such assumption but demon
clearly the weakness Of the claim based
upon IT, The power claimed by the judiciary must stand
upon It's own clear rgl and not upon our supposed Ten
/ dency TO wrong. -, 40,
that is embodied IN this b. In my Judgment any other
would be tempOrizng feeble. and Intellectual We must
either uphold preogaiyes as national legislators or
abdcate them TO the judiciary weld their
opinion the power TO annul our laws. Did not speak
shrink from assang this forum ana before the nation
judicial and professional dogma which may almost be
whereof the memory Of man runneth not 20 the con
trary but which by no length OF years can grow INTO
higher authority than the Constitution. have assaed
IL because believe II false and fraught with mischief
and dethrOned. II wrong in this belief nothing have
said will terminate its long reign; but II right that reign
must end the truth will triumph however long delayed
| Why should 1t not triumph nOwi
| PERSONAL EXPLANATION FROM MR. BRowNLow.
Tenn desired to have read TO the Senate commuuca
ton Of personal character. The Clerk then read
| paper received from Mr.. BrownOw through the Chair,
respectfully asking be heard by the Senate upon what
he regarded question Of privilege, growing out OF
the election Tennessee and bis personal rea-
tons 10 the Republican party. His enemies had been
heard through several Of the Republican Journals OF the
country and by several statements made 10 the Senate
and hc desired that the other SIDE OF the question
/ should have a hearing.
No immediate action taken upon the request OF
Mr. Brownlow and the consideration OF tho Dill before
| the Senate continued.
| Mr.. EDMUNDS QSep VT remarked that he had been
rritated by proceeding called Judicial which has
taken place. and others supposed TO DO impending but he
had been taught suppose there wide difference
between Congress undertaking TO assert ts ht 10 Judge
OF what its political action should be, and its right TO de
clare itself the sole judge OF the cOusttuOnaty In all
affecting the private rights OF It's action The
theory of all constitutional governments he had supposed
that the people themselves not always 10 10
trusted and that constitutions framed for the pur
pose preventing the people themselves from interfering
with what the whole Thought safest. Ihat was
| one purpose and 40 10 was with the law. Every law
passed by Congress restraint upon the people ana