The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1869-07-16


an order from his Honor that the case
would be heard atthis time, ana n:obe-
dience to this intimation, and owing to
his personal and official respect for the
tribunal of which his Honor Is presid-
| ing officer, he Mr. Hoar) attended this
hearing: He had been at a loss in
looking at the matter to see In what ca
pacity His Honorwas sitting here. The
| Supreme Court had adjourned, and al
though its hsad is here the functions OF
the Court are not entrusted to any OF
its memhera.l What.the SbpremeCourt
inquire. He asked His Honor to look
atthej statute having reference to bis
powers. The Judiciary act has been In
existence for eighty years.. and never
within that time was hefaware that
any person was ever, delivered from
imprisonment by aIwrit OF hGbedSi cor
ptL8 issued by Justice OF the Supreme
Court out of the circuit 10 which he was
assigned. he also quoted from the
amended act or 1867; to, tshow con-
L Itinuation 4of his arguments that the
Judge must confine himself TO his as
signed limits, in which to exercise his
own indicial duties. The Judges ol
the Supreme Court have no individual
authority except what Is expressed by
statute: he felt SURE that no member
Of the Court would propose to exercise
doubtful jurisdiction, where adequate
provision had been made by law. Upon
| the rights of petition he was also at
loss what to say, and how far to- go1nto
the discussion at present. he had no
doubt that Whatever judicial duty als
Homer felt devolved upon him, whether
as head OF the great Court over which
he presided, or In any duty devolVed
upon him as an individual member Of
the Conft;ihe would not ask to avoid
the responsibility. While the duty was
plain, His Honor would perform 1t;
but the momentous Importance OF this
question, fraught as it .is with what
| even friends on the other side must ed-
NIT, before a Jurisdiction most doubt
| ful, and never before exercised by. His
Honot'a predecessors, In which His
Honor Is asked on his single responsl-
bility 70: declare unconstitutional, an
act of Congress, todetermine judiciahy
a state of facts contrary to that accepted
and acted on by Congress and the Ex-
ecutive, was entirely Calling. on His
Honor for a degree not only of Judicial
intrepidity, but of readiness to tread q
path which it will be Unnecessary for
him to tread. No case can be shown
where His Honor's illustrious prede-
cessors or associates ever exercised such
e power as that proposed from the
foundation of the Government to the
present hour.
The Attorney General, as to the mer-
its of the petition, would simply say he
recognized in the fullest degree that the
Constitution 'of the United States ex-
tends over all the boundaries and in
habitants; that there Is no power in
this Government to do anything incon-
sistent with the ConstitutionSio or not An
con nfotmity to 1t, and that this petition
er is entitled to whatever protection in
his own right which the Constitution
gives him. He then argued that when
Snf aHnIu
the State of Mississippi was found With
out Government of any kind such as
the Constitution of the United, States
REQUIRES and makes 1t the duty of Con-
Rress to maintain! Whatever Congress
and}tne Executive may proceed lt9 Fdp
III the discharge of their duty! 10 secute
q republican government in Mississippi
must be done by constitutional means.
In 1867 Congress passed ,reconstruc-
ton act, In which they declared as a
reason for doing so, that no legal State
Governments existed in the South or
adequate protection Is Afforded to, the
people. As II was necessary that peace
and good er,ahonld be legally estab'
lished in said rebel States, they were dl.
yided into military districts, The prop
osition he submitted was this, that the
act declares that war has not ended, in
so far.that it is necessary to preserve
the peace. All civil government was
wiped out: They found the South.
ern country infested with assssstns In
spirit and in fact, and although his
frfend! Mr. Phillips, said that in all the
country war is over, yet 500 murders
il Texas; stimulated by vindtct1Ye re-
bellious hate, must, be- the -ansWefSto
that assertion. iit4f Congress, may en-
force the power of fithe Government and
continue those States In the grasp OF
war, the hostilities have been suppress.
ed. Fearing that the insurgents may
again rise, and there being nc, protee-
tion might not Congress- DECLARE such
measufes ss would preserve the peace.
II is the duty OF Congress to give the
rebellious States the blessings OF peace
and security under the law. The length
of time in which to do so are matters OF
Legislative authority. :tAs to tthe 5peti-
tfoner. there is no civil Government in
Mississippi which can punish hlm.
III ne should be proven guilty OF crime
for which he Is arraigned, the law de-
cIafes no civil government exists there;
the Government is military.
After further argument, he said the
best understanding of the view he had
given was consistent with every opln-
Ion of the Supreme -Gontt, and 2consis-
tent with every expression OF opinion
OF the Chief Justice, either Rs'helq or as
member of the Court ..'-'
Time Chief Justice uninterrupted th9At-
tOrney denefhIS Anu s:sAten LAP AL WY
Texas case to which reference had
been made, he indicated rather than
expressed the opinion thatvpowerf to
suppress tiinsurrection and power to
make war exist SO long as actual hos
tiiities are carried on; but when hosttl-
tiles cease all restoration Is in the Con
stitution, which, guarantees republl-
can government to each State.' That ts
civil, not a military power.
Tho AttorneYr>Ge .reSuming,
said that military control must con-
tinue until State can be safely turned
over to the civil authority. '""
- Mr.. James NJ. Carlisle, of counsel for
petitioners said the Attorney General
began, by telling them that he had no
business here, and the Chief Justice
had no bnSiness here, remarking that
ii His Honor should undertake to ex-
ercfS6 The jurisdiction asked fand nhe-
rate this petitioner, he would exhibit Q
remarkable degree ofjndicial intrepidi-
tVI MD Caflilse said he lad heard
such an expression within these halls.
He did not Know what was meant by
It. 2Thefe was something in lis nature
which made ehim feel that it was. In"
sitIinR officer was not one TO be called
on in calmS judicial spiritS but In q
spirit of disputRtion, in RpiEit OF, zeal
and active kearnestneSs Inconsistent
with the judicial character. He was
satisfied Of one thing that neither such
expressions at. the bar, nor expressions
elsewhere, whether printed or spoken
the scale son this question, which HIS
Honor Is holding with steady hand.
Mr. Carlisle then made the closing
afnumeIlt,s to show that the Chief J US
tice could grant q writ and he replied
at some length to the remarks Of the