The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-02-18
THE CASE or THE NATCHITOCHEs
PRISONERS.
NUMBER vi.

tuition proves positively that choosing,
"electing" and appointing" Federal func-
| tionaries are done by States, and not by
voters, the electoral machinery-of which
voters are part-being created by the said
| States to enable them to ascertain and ex-
press their will, let me look little further at
the basis Judges Woods and Bilings-cOn-
trary to the constitution-lay for Federal in
termeddIing with voters.
They themselves say the Federal conStitu-
ton does not proUjde for any uoters "who, in
dependeBtly Of State laws are entitled to vote
for members of Congress-" "But," say they,
t'section of article declares in the most I'M
mistakable terms that members Of Congress
shall be chosen by the people Of the several
States, who shall have the qualifications re-
ouisite by the State laws etc. These judges
italcise SHALL" hoping thereby to make IT
Enthusiastically imperative and to create the
impression that the Federal government is to
see that the States "shalF' do it, and to coerce
them, or their voters. If they do not.
| The fathers unanimously said that the
| States in planning and establishing the con-
stitution, acted as equal sOvereigns. AS united
| States these bodies we're intraSted, by the in
dividual States with delegated powers; and
/ they chose their agents to exercise them,
each State electing her quota; and, more
over, all the fathers invariably characterized
these electee5 as substitutes, "agents,
Servants" "overseers, delegates, "repre-
sentatives," etc, Of the people. II so, and II
their only powers are delegated, how, In the
name OF common sense can the above phrase
be construed to be mandatory, and to be en-
forcible by the servant against the will OF the
master and sovereign-the commonwealth?
ADDITIONAL CONSIDERATIONS.
/. Primarily "shall' Is simply an auxiliary,
and the sign Of the future tense.
/ q Gt may be imperative when emphasized,
/ but no Judge has the right to do this when
the lawnaker has not done it. fSee Web
ster'S Dictionary
| 3. II cannot be- mandatory In conven-
| tional and voluntary arrangement among
/ equals, for the execution Of it must depend
on their compact and plighted faith. Fede-
raj coercion-as all the fathers said-is on
| citiZ MS, and not on States
/ 4. The equal States that in convention ma
| tured the constitution, would not have allowed
| the use Of language that was imperative and
| to be enforced by their own creatures. The
| convention was especially careful to keep
| coercion of State out Of the constitution.
5. All our history and records show that
the union Of States was voluntary and that
their functional action was to b. voluntary.
This is what freedom means, and what re-
publicaniSm means.
e. The word "shaI' is used in all private
contracts, treaties, constitutions, and notably
all adm the States to have been the supreme
authority.
THESE JUDGES DID NOT ORIGINATE THE
DODGE.
I will, however, acquit these judges of
originating this shallow device, and consider
1t in Story and others Of that school, who use
It as one Of the tricks OF exposition IN show
ing that our States are counties, and that
"they perform deisgative function" In what
ever they do Of government. Lincoln and
other loose jointed frontier expounders held
this view.
-HThe error Of such ,isupposing them to wish
to argue fairly, consists in viewing the con-
stitution solely as law q Sto. Com, 227),
whereas it is
First-A political arrangement SAY com
pact) between thesStates 50 q. e., by conven-
tions) ratifying the same"
Second-A constitution OF a governmental
agency; and
Third-A law over the persons and things
in every State, laid on them by the respective
States In ratifying, and thereby ordaIning
and establishing the instrument.
No one understands the constitution who
does not view it in these three aspects.
Obviously, then, the clause that members"
Of Congress shall be ''chOSen by the people
OF the several States, is one of the numer-
Gus agreem ents Of the said bodies who are
named in the first article of the constitution
as the parties, and are referred to In the sew
enth and last as the OrdainerS and establish
ers of it, Each of them provides, as the
means Of expressing her will the only right
Of potung there is or can be; and these judges
utterly fail to show, either by emphasizing
''Shalp or otherwise, any other right Of U0t-
ing
I conclude that the act Of Congress and the
| judicial opinion under review, are baSeless
and usurpatory, and that those who arrest
and bring citizens 50 or 800 miles from their
own homes, courts, juries and ample and ex-
elusive machinery OF justice, must be male
factors, and being sworn not to exercise un-
written powers, they are arbitrary and per-
jured usurper5 and oppressors, who have no
right to respect or obedience, for resistance
to tyrantS is obedience to God"
REsORTING TO A sCBTRRFUGE
Is evidence Of conscious guilt. These judges
raise the doubt as to this power Of Congress
to control or interfere with the States means
Of expressing her will. and they know that
the rule In ascertaining the meaning and in
tent Of doubtful language, Is to interpret in
favor OF original against impaired authority
in favor Of the sovereign grautOr. the peo-
pie, as against the grantee or agent; for the
latter may be a SeOundrel and traitor. aiming
to betray the people into chainsi But the
said judges try TO divert the people, and de-
Jude them, BY quoting Judge Marshall in
Fletcher vs.. Peck and ID the Dartmouth Col
lege case, where he does not even express
the ghost of principle, and certainly none
involved in this case, but assures Congress Of
his distinguished consideration and says he
Will IOL 0FCidE6 nun any IdNS OI LIleiT5, OIL
slight implication or vagne conjecture, but
will be sure he is right, then go ahead,
Such quotation seems a thrilling with the
subject. The usurpation charged Is as plain
as the suns eclipse. These judges themselves
raise the doubt whether this dangerous power
over life and liberty is couched ia the consti-
tuition, and then dodge off on inapposite and
no-principled djcta, evading, or rather trying
to reverse, the above principle Of construction,
which Is 3 to every lawyer.
WhV assume an 1QaDDOGItP nrinoiDIn and
quote irrelevant Marshall, when relevant
Waite Is right under their researching noses?
1t must have taken studious effort to avoid
the following manly and iudge-like decIara-
ton in United States vs.. Reese:
'Ghe courts enforce the legislative will
when ascertained, If within the constitutional
grant Of power. Within its legitimate sphere
Congress is supreme, and beyond the control
stitutlonal limitations, and attempts that
which il beyond its reach the COURTS are AL