The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1909-02-13

Marshall. Joseph story, Broekholst Liv-
ingston. Thomas Todd. and Gabriel Du-
vail
This was case certified from the Cir
cult Court FOR the District Of Connecticut
IN which. upon argument Of a general
demurrer 10 an Indictment for libel On
the President and Congress Of the United
States contained in the Connecticut
courant Of May Z, 1896, charging them
with having as a secret voted s., 60e, 900
as present to BOnaparte for leave 70
make treaty with Spain The judges
; OF that court were divided in opinion
upon the question whether the Circuit
court OF the United States had a common
law jurisdiction IN cases Of libel.
Pinkney. Attorney General. in behalf
OF the United States, and Dana for the
defendants, declined arguing the case
Opinion of COurt.
The following opinion was delivered
on the laSs day Of the term, all the judges
being present. by johnson, J.:
The powers q the general government are made
up OF Concessions from the several States whatever
Is not expressly given TO the former TIE latter ex-
Ires~y seSerTe. The judicial power q the United
states Is Constituent part q those conoessioLs:
tnat power Is 70 he exercised b. courts Organized for
tae f';rpose and hrpught into e-isteace b. effort
o. me legislative power q the Union of al the
courts afich the United States msy. under ther
general powers. Constitute one oniy-tbe Supreme
tolist-possess<s Jurisdiction derived Immediately
from tie Constitution and Of which the legislative
I power cannot deprive t. All other courts created
by the general government possess no jurisdiction
out what Il given By the power that creates them.
and can be vested with noas but what the power
ceced 70 The general government VIII authorize them
70 confer, And sGch Is the opinion * Z majority
q this court For the power whieh Congress pos
sessfs 70 create courts 81 inferior Jurisdiction nscss
saTlly implies the power 10 hmir the jurisdiction
OF those courts 20 particular offsets; and When
court Is created and It's Operators confined 20 Ger
tain specific objects with what propriety can II as
sunss 20 Itself jurisdiction much extended, IN
its nature ve-y indefinite appiicabis 70 a great
variety o subjects. Varyng IN sTezy State in the
Onioo, and With regard 20 which there exists no
definite criterion q distribution between the dis
t1ct and circut courts q the sane district
Certain implied powers must necessarily result 70
our courts q justice from the nature q their Inst
luton but jurisdiction q crimes against the state
IL Eo1 among those powers To fine Tor contempt
iHpEison foT coutmacy, eniOTce the Observance Of
order. &c, are powers which cannot Be dispensed
with N court. beeause they sre Necessary % the
exercise Of ali Others: and 50 FAR our courts, no
Doubt, posses posers not Immediately derived from
statute; but al exercise Of criminal jurisdiction IL
commentary cases. are Of opinion, is not within
tier implied powers
Not Crime In 1872.
Libel. then, was not crime against
the United States in 1872. Has any Fed
eral law. as distinguished from local
law, been passed since that tine making
il suehg None whatever.
Libel may be crime against the Dis
trict OF Columbia, as Il Is against the
State OF New York. but it IS no crime
against the Federal government as such,
nor has il ever been. nor viii Il ever be,
50 long as Congress adheTes 10 those
principles on which the Revolution and
the Constitution depended.
This point was clearly settled in the
case Of Cohen Us. Virginia. reported in
Fourth Wheaton, at page 2SS.
Every law OF the United States is
binding in the States. Therefore no Law
Of the District OF Columbia Is a law OF
the United States
1T IS evident that neither the Consti-
tuition ner any statute Of the United
States has been violated By the parties
who are being prosecuted in this case.
For II the section Of the District Code
which afhxes punishment for libel were
construed 70 mean that libel against the
government or the United States Is pun
ishable b. an act OF Congress. Il would
be repugnant 20 the provision Of the first
amendment Of the Constitution. which
declares that Congress shall make ne law
whatever abTidging the freedom of the
press And this Is true, whether that
section be derived from a law Of Mary
land In force az the date OF the act OF
oession or not. for certainly rhe act OF
cession would not sbrogate the arst
amendment
says Act Would BE Void.
III. therefore. the District Code. or sec
ton 1891. Of the Revised Statutes. or any
other act Of Congress. abridges the
freedom OF the press IN the sense IN
which thar term is used in the Constitu-
ton. such act is void to that extent alb
initio. II would be needless to repeal
such an act since It was repealed by
higher Law al The very instant OF its
enactment
In fact IL was prohibited in advance.
and was prohibited in order 10 prevent
such abuses as that Of which I am here
complaining. The men who framed the
Constitution were apprehensive OF the re-
cuTreHce Of such prosecutions for libel
in political matters as those which had
disgraced the jurisprudence Of England.
and resulted in the revolution OF 1851
Mr. Wiilett quoted from an address OF
Mr. Justice Baldwin before the Ohio
Bar Association. in 1872. 10 which he
added in conclusion:
Now. Mr. Chairman. ] repeat this ad-
monitiOn here to-day in the presence Of
the representatives Of the American peo-
pie. And. in connection with It, / point
10 the most fragrant and the most danger
Gus exercise Of usurped power ever wit
messed in this cOuntry-a usurpati0n which
seems 10 be intended 70 fOrestail this
House. the grand inquest OF the Nation.
in the exercise OF its right 20 investigate
the charges Of corruption brought by
responsible citizens against the admins
tration now IN power
And I warn you that no such usurpa-
ton should be allowed 20 entsngle itself
in precedents. lest by repetition the abuse
become iuveteTate and despotism firmly
established on the ruins Of our Republic.