The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-07-15


or bsnished or despeted Of his property; nor shall
sentence be passed on him unless by q jury
laws ' Of the lsnS On A' Inc 4sn Of April,
States the territory when now constitutes
q part Of the State OF Mississippi 10 was enacted
that the provisions Of the ordinance OF 1887 should he
and remain in force in said Territory these pr0vi-
entitled to the dement's and to the writ OF hapeas cor
pus and the right OF TRIAL by jury. when Congress
subsequently provided for the organization OF Q
State government they declared these provisions
should become part OF the fundamental law Of the
State Accordingly they were placed in the constr
tuition Of MssissIppi and have remained there from
Mr. Philip then referred to the clanses OF the
stitution OF the United States relative TO the protec
ton OF the rights OF the Citizen and proceeded to
notce the opinion OF Attorney General 11oar
In the Texas Weaver murder case, the reasons
for considering the military commission a legal
organization, and saying he could nave no doubt
that the nation can retain the territory and the
people within the grasp OF war untI the relations OF
asked Mr. Philip, wlthln the grasp OF war, original
or nota Could there be stronger expression 70 de-
nDe the most Migrant war than that termf II was
not constitutional aud legal phrase"
The Attorney General explained that the phrase
anuded TO by his brother was quotation from
friend who had used 1t IN another argument
Mr.. Philip, resuming, said he thought the express
sion had been found in some book on the laws OF
war. 1t was, however entitled to consideration,
because it did not express any definite idea
was warranted by any Interpretation OF consfltu
tonal law. He then argued that war no longer ex-
General. AS question OF fact there could be no
doubt OF this or difference IN honest minds. On the
20th OF August, 1866, the President issued proca-
nation declaring the instruction which had
existed In Texas at an end, as In the other
states, according to the. proclamation OF April,
1858, the President addlng:-"And that peace,
order and tranquility and. clvn authority now exist
IN and throughout the whole United States OF
America" Prior to thls In December 1885, the
President said IN his message:-.sfhe rebellion has
been suppressed, and the people lately In rebellion
yield obedience to the authority OF the United States
wi m MT M w han
reasonably be anticipated.n The Legislature, too AZ
lie showed, declared the war over. The President
and Congress acted in accord. IL was known that
Congress disputed the right OF the President to take
measures for the reconstruction Of the Southern
states, and therefore, was considered necessary to
take steps 10 lead those states back into the
Union. The Reconstruction acts were passed on
this basis but he fMr. Pbilip) would say that the
civil rights OF citizens existing In the Territory are
the same as the civil rights OF citizens existing
everywhere The constitution has spread its shield
over Owe all parts the cou@ ret wheher we SPEAK 81
ference, they are all under the government Of the
United States.
Mr. Philip replied at some length to the opinions
expressed on the Texas murder case by the Attorney
General, and in conclusion asked In the name of
peace and m the name OF tho constitution which
petition for writ of habeas corpus might be
granted.
Attorney General Hoar next addressed the Chief
Justice, saying he should appear before him with
some embarrassment II he were to undertake to show
by what right or under what duty he appeared
the petitioner copy OF the petition. accompanied
by an order from his Honor that the case would be
heard at this time and In obedience to this intima
ton, and owing to his personal and official respect
for the tribunal Of which his honor Is the Head and
presiding officer he (Mr. Hoar) attended this hear
ing. He had been at loss, In looking at the matter
to see in what capacity hs Honor was sitting here.
The Supreme Court had adjourned, ald, al
though its head is here, the functions OF the
members. What the Supreme Court would do 1t
was hardly necessary to inquire. He asked his
Qf0 eufn
powers The judiciary act has been in existence
for eighty years. and never within that time was he
prsonment by WRIT Of na6eas corps ssu ne bv
justice OF the Supreme Court out OF circuit to
which he was assigned. He also quoted from the
amended act Of 1867 10 show continuation OF his
argument that the judge must confine himself to his
assigned limits, in which 70 exercise his own judi
cial acts The Judges Of the Supreme Court have no
Der Of the court would propose to exercise
been made by law upon the merits OF petition.
sHe was also at q loss what TO say and how far go
whatever judicial duty his Honor felt devoved upon
him, whether as the head Of great court, over
which he presided, or IN any duty deyolved upon
not ask TO avoid responsibility. While duty was
plain his Honor would perform it. But the mo-
1t IL with what his friends on the other side
must admit, before jurisdiction most doubtful and
never before exercised by his Honor's predecessors,
in which his Honor Is asked on his single
responsibility to declare unconstitutional an act Of
COngress-to determine judcially state OF facts
contrary TO that accepted and acted on by Congress
and the Executive, was certainly calling on his
Honor for decree not only Of judicial intrepdity
@ for him tread Ro case can be shows
where his Honor's ilustriOus predecessors, or asso
ciates, ever exercised such power as that now pro-
posed from the formation OF the government TO the
present hour.
The Attorney General, as to the merits of the
petition would simply say he recognized in the full
that the constitution Of limited
extends over all its boundaries and inhabitants;
that there isnO power In this government to do any
thing inconsistent with the constitution or not
IN conformity to II; and that this petitioner
is entitled to whatever protection In his own right
the constitution gives , him. He then argued that
the State Of Mississippi was found without q gov
ernment Of any KIND such as the constitution OF the
United States requires and makes 1t the duty OF Con-
gress to MAINTAIN. Whatever Congress and the Ex-
ecutive proceed to do in the discharge OF their
duty to secure republican government In Missis-
sippi must be done by constitutional means. In
1857 Congress passed the Reconstruction acts, In
which they declared as reason for dong 80 that
adequate protection afforded to the people, and
was necessary that peace and good order should be
legally established in said rebel states they were
divided into military districts The proposition lie
submitted was this THAT the act declares that the
war has not ended In SO far as 1t is
eminent was wiped Out. They found in the
SOuth1 country infested by assassins In spirit and
in fact and although his friend Mr. Philip said that
in all the country the war Is over, yet the sixteen
hundred murders IN Texas, stimulated by vindIc-
tive, rebellious hate must be an answer 10 that
assertion. II Congress may enforce the power OF
the government and continue those States In the
GRASP OF war" after hOstilities have been sup
pressed, fearing that the insurgents may again rise,
and there being no protection. might not Congress
declare such measures as would preserve peaceY II
is the duty of Congress to give rebelious states the
blessings OF peace and security under the law. The
length Of time in which TO do SO are matters or egis
latlve authority. AS to the petitioner there Is
no cvll government in Mississippi which can
punish him II he should be proven guilty of
the crime for which lie Is arraigned The law de-
cares civil government exists there; the govern
ment Is military
After further argument he SAID the best under
standing OF the view he had given was consistent
Chief Justice either as the head as member Of the
court.
The Chief Justice interrupted the Attorney Gene
raj and said that in the Texas case which refer