The States and Union. [volume] (Ashland, Ohio) 1868-1872, 1871-03-01

OF SougTeSS are clOScu. II pIOfIucs
also that at all such elections the vo
ting shall be by ballot. This is to
effect Kentucky. the only State in the
Union where viua roce voting exists
Exchange.
-
A Doubt as to the High Com
mission.
1t is not possible to disguise the fact
that the High Commission" device
for settling our difficulties with Great
Britain is not, by the public, welcomed
with enthusiasm. 1t would be hypo-
critical to refer to- the ugly historical
faint which clings to the very name
with which it il heralded, for such a
'"High Commission" has nothing in
, common with it's ancient namesake.-
But doubts and constitutional perplex-
tiles distLrb it in its very cradle, and
the public is already beginning to ask
whether, after all. the uid-fash,oned
way of negotiation. which no one ques-
tons, is not better than this huge, I'M
precedented tribunal sort of dc
niediatats jury, whose very legality, as
we have said, is open to .cavil. Pass
ing by the grave question OF the con-
.tItutIonal power. OF the President
thus to pension the retiring Senator
from Oregon, which the grave aud il
Iustrious body which it most directly
affects seems to have brushed aside us
if it we're the merest triae-conirming
Senator Williams, for no other avow-
ed reason than that which saved from
rejection the Presidents latest brother
in-law,-passing this by, as, for tue
present, an adJudlcaled thing, we are
impelled to suggest a doubt III another
direction, and one as to which we can
no, be suspected of personal or politi,
cal prejudice.
We refer to the selection OF MIR.
Justice Nelson, to whose purity Of
patriotism and eminent ability in the
discharge of the peculiar functions t.
which his life has been devoted We do,
and have always done, full justice
Putting aside, all personal considera-
tions, to which, however, we may
have occasion to refer, the mind, look
ing over ancient history-that, We
mean, of the early Government ano
its presidents, as modified in their ap
plication by the times we lived in
cannot divest itself of doubt rs tt
the perfect propriety of this choice
1t the elementary student will turn tt
any book of authority on the Constr
%tuiion, he will zee in what direction
this doubt lies. In Judge Story's Com
mentary. and We quote It as most lati,
tudinarian and, with the dominant
party, most accredited, the principle
is broadly stated that the duties or /.
Federal, or any other Judge, but es-
pecially q FEDERAL one, are and car
only be ''strictly and exclusively jutl
ciai." The authorities cited, rs ii
very often the case, do not 60 quite 50
far in their letter, though the spiri
does, but apply only to the judiciary
as al aggregate, as in the instance o.
the pension duties which, a long time
ago, were delegated to the Federal ju
dietary, and by it r~epudiated- sc
manifest was the reason Of the objec-
ton that Congress instar tly repealed
the obnoxious act. The restraint ID
however, in principle, rs operative OIL
the individual judge. as ON the tribuna
of which he is part. It will be con
coded that if, instead OF one, the Pres
ident had nominated q congress-, au
thorized il, all eight, qua judges, rs di
plomatic commissioners, it would be
illegal. That is certainly adjudicatec
Law.
How, then. can one be detached
and be virtually the presiding judge
the keystone OF this arch-whose du-
ties, appellate and circuit, never inter
init, and be transferred to a sphere as
alien from judicial function as it would
be to send Mr.. Justice Field to super
yise Il e San Francisco mint, OF Judge
Clifford to cruise on thegfshing banks!
Beside, is there not a patent and Prac
teal difficulty in this divergence, aside
from constitutional scrupie? These
High Commissioners" if they do
anything, are to makea treaty, which,
ratified hy the Senate, becomes the
written law of the land. Almost every
treaty ne.otiate,t with foreign nations
has been subjected to- judicial review
by tie very tribunal OF which this
High Commissioner is a member. We
will impute to no one the ~indecency
OF selecting a man advanced in years,
on the theory that, while he may sur
vive the DIPLOMACY of a Washington
summer, he is not likely to live TIL
treaty lawsuits bloom and ripen.-
Judge Nelson's nomination is doubt.
less made in entire good faith; bui
surely the question of constitutional
capacity to act is not absolutely clear,
and If !. be not, can any man be will
ing to entrust so momentous a duty to
a questionable agency? We are quite
aware of the one precedent which is
supposed t rule this case. that of Mr..
JAY, who, while Chief Justice, was
made Mini>ter to England, and acted.
There is not much which is inclusive
in this, without raising a question Is
to whether there is enduring vitality
in precedents not adjudicated seventy
six years old.
With all Difference for the dead and
due respect for the living we may as
sumo that Washington not only did, but
refused to do, things which are utterly
out of fashion in the one case and
done daily in the other. Let us sup
I-k (1JI1-,- St,o Strr1Io ~, laws