Year: 1868

THE MeCARDLE CASE.


AssSne.s Of David Dndley Field, Esq, In tho
United States Supreme Court. ga


II the court please, II were ambitious to connect
my name with . great event in the constitution a
history Of my country should desire no better op-
Porruhity than that which this caseanords. What ID
here transacted viii remain In the memory OF men
hong after the feet which tread the halls Of this
capitol have made their last journey and the voices
now 80 loud are forever silent. But though the part
which the bar bear in this transaction is far inferior
TO yours yet even they assume portion Of the re-
eponsibity, while the words that are to fall from
you viii stand forever In the Jurisprudence Of the
aand. In approaching the argument OF 30 great q
cause 1t is OF the first importance to exclude from
every extraneous or disturbing element We should
be lifted II we can, above all the strfes and passions
of the hour into serener air. with wider horizon
With the struggle for office, with the rise fall o
parties with the policy OF President or Congr W.
have nothing to do. Within the walls OF thi.
chamber OF justice we look only to the law
and to the constitution. But that does moi
prevent taking that the independence Of the
bench and OF the bar is not menaced; II that hap
pen, that the menace be repelled. l say this the
rather because one OF the counsel fit to say that
1t was the duty OF counsel to admonish the court.





differ nom Congress upon constitutional question;
of packing the court at future time; OF enact
ing that two-thrds or three-fourths OF the whole
shall be necessary decide case or excluding the
tourt from their chambers Admonition from whoms
We know that the President has none to give; he
disclaims 1t. We know the counsel are deputed by
the Secretary Of War. Is 1t admonition from the
Secretary Of War; If did not know that my w0r-
thy friend the Secretary Of War is barricaded In his
baJ I
think this more serious. Admoniton from Congressf
have the highest respect for the members who exc
cute the function Of legislation for this country; but
they are representatives, all of them, of States or
people; and when reflect that from the great States
OF New York, New Jersey, Pennsylvania and
Ohio, and from California they represent but min
prty of the people, the admonition comes with less
force than 1t might otherwise have. But as a PEN
dant to this admonton are told that this court s
not Q coordinate department OF the government.
Not coordinate department of the gov
ernmentS Is there any department co-or-
dinate with CongressP This Is the first time,
certainly when 1t has been suggested in this
court that the judicial department was not coord
nate with either Of the others. And certain am
that In the great convention where sat the conscrpt
fathers who made this constitution such an idea
never entered. For find at the beginning in the
original plan 1t was resolved, the first resolution
OF the convention, that "lt Is the opinion of this
complttee that national government ought to be
established, consisting OF a supreme legislative, ex-
ecutive and judiciary" Turning to- the comments Of
the great founders OF the government, find in the
Federalist," the forty eighth number this remarka.
ple exposition, written II with the spirit of pro-
Phecy:-


shall undertake to show, in the next place, that
uniess TINS department is SO far connected and
offended as TO give to each constitutional control
pver the Others the degree Of force which the maxim
Fequires as essential to free government never
pc in practice duy maintained 1t is evident that in
Preference to each other neither Of them ought pos
eess, directly or indirectly an overruling influence
In the administration of their respective bowers It
hyl not be denied that power is of an encroachjnC
nature, and that it should be enectualy restrained
nrom passing beyond the limits assigned.


| After assigning the powers as they should be- the
next and most di1cult task is to provide some pro-
npu0n against the invasion OF the prerOgatives of
nhe one by the other. VIII 1t be sufficient to define
fhe boundaries OF each and to their forbearance
otherf Experience shows that is necessary pro-
vide some adequate protection Of the weaker against
! The legislature is everywhere extending its infu-
ence and drawing all its powers into Its impetuous
vortex.


What is the question before the courti It is this
"A citizen of Mississippi, in October, 1887 was
brought before military commission and put upon
frial for writing in newspaper criticism OF federal
military ocffiers and advice to the electors not





HE was not ip the army or navy; he was not i'm
pressed with military character; and the question
Tor you to decide Is, whether under overnment
citizen, mere civilian, can be subjected to military
trial. under the authority OF the federal
The trial is defended upon the authority Of the three
acts OF Congress usually called the Military Recon-
acts. And the question, therefore, is
whether these acts are are not reconciable with
the supreme law OF this land II they are our great
1orefathers made charter OF government intended
20 last for all generations OF such character that
within eighty years after its adoption that federal
government to which the States-originally sove
reign and ndependent-surrendered q portion OF
their power can take upon itself the government OF
State and it by the army Alone That Is the
question which IN this last resort is brought before
the supreme Judges OF the land. And the principal
question hinges upon the preamble TO the original
act and the first and third sentences, which will
now proceed to read:-


Whereas no legal State governments or adequate
protection for lfe or property now exist IN the rebel
States OF Virginia, North Carolina south Carolina,
Georgia, Mississippi, Alabama, Louisiana, Florida,
Texas and Arkansas; and whereas IL IS necessary
That peace and good order should be enforced in said
States until loyal and republican state governments
can be legally established; therefore,


Be 1t enacted &C., That said rebel States shall be
divided into military districts and made subject to
tae military authority Of the United states as herein
after provided, &c.


And after pr0Vldlng lot tHc assipnineift vi an
Ger Of the army to the command Of each district the
net proceeds In the third section thus:-


That 1t shall be the duty Of each oiiicer assigned as
aforesaid protect all persons in their rights OF per-
son and property, to suppress nsurrectlon disorder
and violence; TO punish cause TO be punished all
disurbers of the public peace and criminals and to
fhis end he may allow civil tribunals TO take uris-
zion Of and to try Offenders; he shall have power 10
organize military commissions or tribunals for that
purpose and all interference under color OF State
authority with the exercise OF military authority
hinder this act shall be null and void.


Here is the preamble and here is the conclusion.
deny both. deny that the preamble is true in con
stitutonal sense, as justification for assuming
The government Of q State; and deny that II the
preamble be true in every OF Its parts 1t ustihe
thls government for these military statutes.


propose to call attention to these questions II
their reversed order; to this first, whether II 1t b