Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-07

that hey may alter and change their form,
of government at their OsUst pleasure.
But whether they have changed il or not,
by abolishing an old government and es.
tabiishing new one in its place, is a cues
ton to be settled by the political power.
And, when that power has decided, the
courts are bound to take notice of its de.
cision, and to follow It,"
By consideration of the legal princi,
pies here stated in connection with the
facts in the Dor case, which we have de
tailed in another article, It will be seer
that the question decided by the Supreme
Court was, not that the people could not
alter or change their form of government al
their own pleasure, but that in the Dori
rebellion this had not been done.
Justice Woodbury. delivered a dissent.
ing opinion upon another point raised in
this celebrated case; upon the question of
martial law. Upon the questions involved
in the discussion of the Minority Report Of
Senator Cooper, of Bedford, Justice
Woodbury. concuITed with the other mem
bers of the Supreme Court. In his own
language "This difference between me
and my brethren extends only to the points
in issue concerning martial law" Hence,
although it is a dissenting opinion, it is ac-
cepted authority on the questions involved
in this discussion.
Justice Woodbury. says:
Constitutions and laws precede the ju-
dietary, and we act only under and after
them, and as to disputed rights beneath
them, rather than disputed points in max
ing them. We speak what is the law,
jus deere, we speak or construe what is
the Constitution after both are made, but
we make or revise or control neither.
The disputed rights beneath constitutions
already made are to be governed by pre-
cedents, by sound legal principles, by pos
tive legislation, clear contracts, moral
duties and fixed rules; they are per SC
questions of law, and are well suited to
the education and habits of the bench.
But the other disputed points in making
constitutions, depending often on policy,
popular resolves and popular will, and
arising not in respect to private rights
not what is 7ReUDs and taltJ1, but in
relation to politics; they belong to
politics, and they are settled by
political tribunals, and are too
dear to a people bred in the school of
Sydney and Russell for them ever to trust
their final decision, when disputed, TO a
class of men who are so removed from
them as the Judiciary. The
judiciary is not regarded by elementary
writers on politics and Jurisprudence as a
power coordinate or commensurate with
the people themselves, but rather cO-ordi-
nate with that of the Legislature. y
Peters 524. The following view was
urged by Hamilton in the F6derdLiSt, No.
n, when the adoption of the Constitution
was under consideration: 1T is the more
rational to suppose that the courts were
designed to be an intermediate body be
tween the people and the Legislature, in
order, among other things, to keep the
latter a0ithin the limits assigned to
their authority. Nor does the cOnclu-
sion by any means suppose a superiority
of the judicial to the legislative power.
1t only supposes that the p01Cer Of the
people IS superior to BOTH The
subordinate questions which arise in con-
nectiOn with the others, such as whether
all shall vote in forming or amending
those constitutions who are capable and
accustomed to transact business in social
and civil life, and none others; and
whether in great exigencies of oppression
By tie Legislature itscL, and refusal by
it to give relief, the people may not take
the subject into their O5Un hands, ijlde-
pendent Of the Legislature ITSELF etc,
etc, these and several other questions
equally debatable and difficult, are in some
aspects a shade less political. But they
are still political. Let the political au-
thorities admit as valid constitution
made with or aCittO1t 7OreriOHS provision
6y the Legislature, as in the last situation
Tennessee and Michigan ICere intro
duc6d into the Union: let the collected
will of the people as to changes be so
strong, and so strongly evinced as to call
down no bills of pains and penalties to re-
sist it, and no arming of the militia, or
successful appeals to the general Govern
ment; in short let a constitution or
law, hoWcUcr originating, be clearly
acknowledged by the existing political
tribunals, and be put and kept in success
full operation, the judiciary can then act
in conformity to and under them. Then
when the claims of individuals come in
conflict under them, it is the true province
of the Judiciary to decide what they right
fully are under such constitutions and
laws, rather than TO decide whether those
constitutions and laws themselves have
been rightfully or wisely made. Ii
it be asked what redress have the people,
if wronged in these matters, unless by re
sorting to the judiciary, the answer is,
they have the same as in all other political
matters. In those, they go to the ballot
boxes, to the Legislature or Executive, for
the redress of such grievances as are
within the jurisdiction of each, and for
such as are not, to conventions ana
| amendments Of constitutions.
We have quoted too extensively from
these opinions in the Dorr case to permit
us any further review of the Minority Re,
port to-day. We cannot believe that the
assumption viii be maintained that the
Convention is 'the mere creature of the
Legislature; that it exists alone by tho
win Of the Legislature.