Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-12-14
L VS.. WARMOTH.
The Louisiana Difficulty before the SUI
preme Court at Neutrality-suspicious.
Of Argument by Counsel.

WASHINGTON, December r. The
Supreme Court was filled to-day with
prominent lawyers and others interested
in the determination of the question
raised in the Keilogg-W armoth case,
and to hearthe discussion by the learned
counsel retained in the case
Hon. p. Phillips opened the case on
the side Of petitioner with an elaborate
argument and great force, ~contending
that the court possessed the power
claimed, to issue a writ Of prohibition in
the exercise of its general supervisory
jurisdiction ver the proceedings of in.
.feriOr courts. He conceded that the pre-
cedents in this country were against
the position assumed, but instead Of
that deciding the cases, there was moth
ing but expressions Of opinion dictd. The
cases did not present the question al
issue in a clear and unmistakable form,
in which it must come before the court,
and the point here pressed upon the at
tentiOn of the court was not necessarily
decided in them.
Mr.. Phillips went into an exhaustive
examination of THE decisionsin the Court
of the Kings Bench, maintaining that
the power was there asserted, and this
was a case calling for its exercise. The
court should inteTpOse to arrest the usur-
patiOns attempted in this case. He
commended that the provisions of the ju-
dietary act authorizing the writs to is
sue to the Courts of Admiralty, was not
intended to exclude the court from is
suing it in other cases., and said that it
could be issued under the fourteenth sec
ton of the judiciary act, which pro-
v-sIas that fhn CDrr-+ nan- leone u,-sfu -
sciere fdcidS, hG6eds corpus, and all
other writs which may be necessary for
the protection of its jurisdiction.
Caleb Cushing followed Phillips, ap-
pearing for Kellogg, the petition
er. In the court Of Judge Durrell
Mr.. Cushing said he proposed to
cOnfine himself strictly to the ques-
ton of iurisdiction-the only One
before the court. The petition prays
the court to grant a writ of prohibition,
or Of c~ertiOrdri, or such other relief as
it may see fit. 1t is thoroughly settled
in the jurisprudence Of this court that it
cannot exercise any supremacy or SUI
periOT power in reference to other
courts, except as may be expressly
granted to it by act of Congress. An
act Of Congress grants to the Supreme
Court the power to issue writs of pro-
hibition to courts of admiralty, and this
court has decided on at least five dis
tinct occasions that the express power
as to Courts of Admiralty implies to the
exclusion of the power as in other
courts, and Mr.. Phillips himself, in his
book on practice, in this court, has cor
rectly stated the law as it is, that this
court has no such general supervisory
jurisdiction as belongs to the Court of
the Kings Bench, and indeed non
whatever except what il has received
from the express acts Of Congress.
Senator Carpenter Or, the same side,
cOntended that by the Judiciary act of
1863 the appellate power Of the Supreme
Court in regard to the suits in equity in
the Circuit Court, was confined to the
to review the final DEGREES; that
this court had not the authority 10 en-
terrain an appeal from the i~nterlocutory
order or decree Of the court below wheth-
ar the court below was proceeding with
or without its jurisdiction. The petit
ton in this case shows that there was a
pending cause in the court below, which
has not yet reached a final decree and
may never reach such decree; there is,
there, to-day no appellate power in this
court in regard to that cause, and never
will be, unless that cause shall reach a
final decree in the court below. Mr..
Carpenter continued, saying that the
fifteenth amendment to the ,constitu-
ton guaranteed not only the right to
vote but that the ballots, when properly
last, shall be counted and returned,
and be made e~fficacious.
Kln.,I,1asa,- +I,& III A. -
which were properly offered been re-
and counted he would have been
aud he brings suit in Equity in
the Circuit Court TO restrain such
canvass, and this suit is progressing in
the court below, but has not reached
get a final decree. 1t is therefore impos-
sible to maintain that this court has
usurped any authority. A case is prop
erly before it in which it may properly
determine the question in dispute be
tween parties, and this court cannot in
until after the final decree shall
be rendered.
AttOrney-Genera Ogden, of Louisi-
ana, closed the argument. He said; 1t
surely was startling to hear q gentleman
IF Mr.. Cushing's national and interna-
.iOnal reputation, declare in the Sa-
Dreme Court of this country that he
3ould see no usurpation upon the face of
he papers filed in this cause. If it be
rue that so distinguished a gentleman
see no usurpatlon III this deliberate
attack upon the rights of the State, then
indeed there was cause to fear that the
foundation Of Our American system had
been destroyed, and the dearest rights of
he people silently stolen from them.
He said that the only hope for his fate
vas within this court, that if it could
;ive no remedy, then it was apparent that
,defect Of Il most fatal character existed
n our political system. He predicted
hat if Louisiana was stricken from the
as a free State by this action, her
ate would be but the beginning of the
md, and from this date would commence |
rapid dissolution of State governments.