New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-12-13

tBy Telegraph so the Associated Press.l
WASHINGTON, D. e., DeUon1ber %
The Supreme Court was filed to-dav
with prominent lawyers and others intel
ested in the determination of the Ques-
lions raised in the Kellogg Warmoth case,
to hear their discussion by the learned
counsel retained in the case.
ARGUMENT OF MR.. PHILLIPS.
Hon. P. Phillips opened the case on the
side of the petitioner with an elaborate ar
gument Of great force, contending that the
court possessed the power claimed, to issue
the writ OF prohibition in the exercise of
it's general supervisory jurisdiction over
the proceedings Of inferior courts He con-
ceded that the precedents in this country
were against the position assumed but in
sisted that IN the decided cases there was
nothing but the expression of opinion dicta
The cases did not present the question at
issue IN the clear and unmistakabe form in
which it now comes before the court. and
the point here pressed upon the attention of
the court was not necessarily decided in
them. Mr.. Phillips went into an exhaustive
examination of the common law authorities
and the decisions in the Court OF Kings
Bench, maintaining that this court pos
s9ssed the power there asserted, and that
this was case calling for its exercise.
us hFT af41o0GHB sAould interpose to arrest the
c9nt6nded that the tbd in this case. He
ciary act authorizing the writ THE judi
courts of admiralty was not intended to
exclude the court from issuing it in other
cases, and said that it could be issued under
the four ef nth section OF the Judiciary act,
which provides that the court may issue
writs OF scire facias, habeas corpus and all
| other writs for the protection OF its jurls-
| diction.
ARGUMENT OF HON. CALEB CUSHING.
Hon. Caleb Cushing followed Mr.. Phil
| lips, appearing for Mr.. Kellogg, the petit
! toner in the court of Judge Durell. Mr.
| Cushing said he proposed to cOntine himself
! strictly to the gu 5stiOn of jurisdiction the
| only one before the court. The petitioner
prays the court to grant writ OF prohl-
| bitiOn, or certi0rari, or such other relief as
| it may see fit.
| The petitioners counsel argued some
| what vaguely as to the power of the court
! to issue mandamus; but he occupied him
| self chiefly asserting the power to issue q
| prohibition. In reference to both remedies,
| he had much to say in affirmation OF the
| general supervisory jurisdiction Of this
court over inferior courts. But it is thor
| oughly settled in the Jurisprudence Of this
| court that it can not exercise any supervl-
| sOry OF superior power in reference to other
| courts, except such as may be expressly
| granted to it by act Of Congress. 1t the
| question were a new one, therefore, We
should have to look at the very outset for
some provision Of an act Of Congress Civ
ing to this court the power pretended, but
no such act has been cited by counsel fol-
the petitioner, nor does any exist.
In the first place, as to prohibition: Al
act of Congress grants to the Supreme
Court power to issue writs Of prohibition tc
courts Of admiralty, as this court has de
cided, on al least five different occasions
beginning with the time OF Jay and ending
with Chase. The express power as tt
courts Of admiralty implies exclusion o
the power as to all other courts. We have
the cases Of the United States VS.. Peters
United States VS.. Christy, United States VS.
: Gordon, United States vs.. Hoffman, ant
United States VS.. Graham, in which Til
point has been decided expressly.
The petitioners counsel pretends that Il
all these cases there was nothing bu
"oDinion," and not " decision"
Ii it were so, the uniform and unanimou
opinions of all the judges of this court, iron
the foundation OF the government to tn
present day, would lead irresstibly to tn
conclusion that such is the true cOGStrut
tion of the act of Congress. But in the las
of these cases, that OF Graham, it was no
a mere opinion; but the very point OF tn
case upon which the right of the partie
e denended and the petitioner alleged, as b
S does here, that the object of the peti 10
o was to arrest and determine a process {
mere usurpation on the part of the c0uI
o below, to the prejudice of the petitioner.
s Secondly. as TO the mandamus 1t n6v6
o was pretended that this court might Inte
rupt the proceedings of others by means
mandamus. Decisions are uniform to tn
d contrary. This court may move othe
courts to act, but it can not direct thei
action nor direct them what to do. 1t ca
not substitute its judgment for theirs, b.
cause it has no statute authority 70 thu
}, effect. The petitioners counsel cites book
of common law, and refers to the authOrt
; of the Court Of Kings Bench. Mr.. Pin
lips himself in his book on the practice
this court has correctly stated the law {
r Il is-that this court has no such generi
+ supervisory jurisdiction as belongs to IL
Court of Kings Bench. and, indeed, mol
whatever, except what it has received fro
express acts of Congress.
!. ii the present case involved an appea
then it is true that prohibition, mandarin
certorari, or anything else, would be IN Il
e discretion Of this court, as decided in Bro
son VS.. -- rail- Dad, | Wall. But he
q is no appeal. for the petition shows that II
case is still pending in the Circuit Cour
y and has not reached any final decI5i0
y Parties have their remedy when aggrieyt
le by the action Of the Circuit Court by appea
70 or writ OF error, as the case may be. The
can not come here and ask this court
6 transact all the business OF the Clrcu
re Court.
a The present case is a suit in the Circu
Court in conformity with the explicit pr
vision of the thirteenth section OF the a
7, of Nav 81, 1870, enabling any person who
T deprived of an office in any State by reast
of the rejection of voters on account
color or race, to secure redress IN the Z
- cult Court Of the United States
~ al IL nal n
" that this act is unconstitutional; but II
did so argue, it would be perfectly easy
show its cOnBtituuonalitY in virtue OF t
10 fifteenth amendment of the constitute
d. He asserts that the process is an act
e. usurpatiop, but fails to Justify his ASSERT
by any sufficient argument, reason or q
thority The counsel has said much
u usurpation in this case. | deny that the
n was any such usurpatlon. But II there WI
n. | this is not the time nor the manner 10 g
rect such error. Whether any appeal l.
;. under this act is doubtful Ii 1t does n
IL then clearly this court can not lnteFte.
ID and if it does. this court can only revise
proceedings below on such appeal. as $
nifcantlv suggested by Mr.. Justice Mile
1t avails nothing the talk Of the ha1
:. ship Of Warmoth losing his Office No SD
j | argument can have any weight with I
~ court, and all the talk of the peril OF
81 public peace is siIaply defamation. Am.
i means exist to maintain the pubhc pea
- against disturbing efforts on the part 81 q
st men OF any man 10 Louisiana.
to AS to the argument OF hardship. u g
os avail nothing here. For nearly three g
erations there was no remedy here IN capl
oI cases where men could be hanged by erT'
re Or usurpation Of the district court. The q
n diti0n Of such persons was much mt
serious argument of hardship to invite