The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-01
THE AFTACK ON JUDO
POWER.

To THE EDITOR OF The 6US-Sir; 1t is
a pity that 80 many Southern Democratic
politicians are disposed when a new polit-
ical issue arises, like the judicial issue on
the railway rate legislation, to clutch Old
OF a blunder made either by Jeffersonian
Democrats a century CO., or by Republic
cans In the reconstruction period.
After the J~effersonians had been driven,
during the John Adams administration, to
retreat into the several States as fortressee,
and open therefrom a ~cannonade OF feso-
lutions regarding national powers, the
Federalists organized behind the judiciary,
and 30 when jefferson become President
the Democrats stormed the Federal WORKS.
Hence that which has gone into history as
Democratic assault on the judicial power.
The attack was temporarily successful.
The new judicial Notifications erected by
Federalists were swept away and the terms
Of the Supreme Court were 30 changed that
John Marshall could not discharge his
battery in Marbury's case till late In 1903,
much to the yeKation Of the Chief Justice.
The J~effersonians derived little perma-
nent benefit from their party strategy. The
new courts and Judges disappeared, but
the old ones reappeared and with them
Marshall went steadily on TO make OF his
country the nation that he did make, despite
jefferson.
Assailing the Supreme Court, and adding
new exceptions to it's appellate power, out
Of spite against railways, will not do mod
ern Democrats any more good than did
Jefferson's fight with Marshall benefit the
ancient Democracy.
Nor will it now advantage Southern or
Northern Democrats to initiate the radical
Republicans of thirty-eight years ago, who
out Of anger against President Andrews john
son, repealed, on March 81, 1857, and over
his veto, a part Of the hdbedS corpus law OF
February s, 1887, and added another Eek
ception" to the appellate power OF the
Supreme Court, which new exception was
removed, however, in 1885, and the appel
late power Of February, 1867, restored.
During the reconstruction period the
legislative power at Washington was in
conflict with the executive and Judicial
powers over the writ OF hdbeas corpus.
The Federal Circuit Court in Mississippi
having brought before Itself by the writ
one McArdle, then under military restraint,
and after hearing having remanded him,
he appealed to the Supreme Court under
tno law OF teDTuaTy D, 1901 II CaSo "ao
argued at Washington early in the next
March and held by the court under judicial
consultation for decision. Congress, fear
ing the court would decide a part of the
conduct Of the former unconstitutional,
suddenly took away on March 81, 1857, over
the Presidents veto, the appellate jurisdic-
ton Of the Supreme Court in the pending
case.
A complete history of the unique trans
action can be found in IA U. 8. Reports,
p. sos, and in rs U. S. Reports, p. IS. Who
ever may be curious to delve into the occult
mysteries Of the appellate jurisdiction OF
the Supreme Court conferred by the Con-
stitution, but nevertheless subject to 'eI-
ceptions,' to be made by Congress, can do
1t in those two volumes.
The radicals in Congress gained nothing
In 1858 by their sharp practice las is to be
seen In Yerger's case In the last named
volume, nor will the a~nti-railway radicals
in 1905 gain by their attempt to destroy
judicial restraining orders.
NEW YORK, March rs.