Year: 1867

| The Appeal to the Supreme Court.
! From the New Orleans Picayune.l ...-+..
/ AS there is earnest desire that some appeal
should be made from the decision Of Congress as to
the rehabilitation Of these States to the judicial branch
of the Government of the United States present to
readers the following considerations respecting IT.,
upon which we ask their thoughtful attention. We
cannot forbear however, to premise that there much
doubt whether a decision adverse to the action OF
Congress be had and still that if adverse it
will stay the hand of power, which even now disre
CARDS its solemn judgment against the exacting OF
test oaths and the right to enforce penalties post
| facto.


For our own vindication perhaps, this appeal m ay
well be made to the judicial judgment of the nation,
but it should be made with the utmost care, and by
such parties and in such will leave room
for the decision of it upon other grounds than the
question of right in Congress to reconstruct and to
its authority to create disabilities and prescribe the
terms in which our State constitutions shall be couched
! Any hurried effort to bring the question forward
side issues by parties who cannot stand on impreg
nable ground, may lead to defeat which will be ac-
cepted final, but which ought not to be so held
There are many considerations to be looked into
when suits brought test cases, and to some Of
these propose to look now.


In the first place, the suit should be which
the jurisdiction of the court should not be impeach
able. Both parties and subject matter should be un-
deniably within the constitutional reach of the Su-
preme Court. Many good test case has been bowed



/ In the next place, the defendant, well as the
plaintiff, should be a representative man, and one
whose case his workers will be willing to carry
through to final adjudication in the court of last
sort. suit with of straw will be an idle and
amless effort which may cause dismissal for want of
real parties.


Nor should tue question be raised collateraliy; but
the gst and burden of the suit the very point upon
which it turns, should be the right of Congress to
unseat the officers of State, to prescribe the qualf
cations of voters, and to dictate what constitution
shall contain


| Here arises another consideration. One of the
objections made in Congress to the existing State Gov
ernments, was that they executive usurpations
That is they denied that Mr. Johnson had any right to
organise State Governments in the South. There is
very little question the logical of
this assertion. In fact, neither Mr.. Johnson Con-
grcss had such right. The State Governments formed
under Mr.. Jubnson's dictation equally invalid
with such may be constructed under that of Congress-
| Now if the suit which is to determine the validity
of Congressional mandate be brought by one who
holds his title under that of the President it is evident
that his footing will be insecure that of the per-
son whom he would oust. To use the familiar illus
tration of suit for land, he must recoser by the
strength of his title, and not by the weakness of that
of his adversary II his claim depends upon
patton he can hardly expect to expe another uauper
by mere legal process.


This may make it quite difficult in some States to
make up a 1t will be contended that all officers,
either elected under the socacd rebellion whose
terms beginning before it, had expired during the
war, where the incumbent of them would not have
held under preexisng lays would not be entitled
claim Office before the bar Of United States court.
Thus, Chief Justice Handy, Of Mississippi, though he
was the bench before the war, was reelected dur
ing it, and again chosen after the re0rganisation by
Presidential mandate, could not maintain his ttleun
der his original commission his power to act after
the expiration Of his term does continue until his
successor is elected. Nor the other hand, have
we on our Supreme, or other benches in other
posts any one who holds under both the constitution
of 1852 and that Of 1864. In our opinion, the suit
would best be brought by whose title would be
unimpeachable under all previous systems, and who
would have been in Office had there been war,
and who holds also under the existing State Govern
ments.


There can no good result from any too hurried at
tempt to test the action of Congress. The govern
ments contemplated under the military bill will be
organised and in operation long before it is possible
for issue to be made up tried before an inferior
court and brought before the United States Supreme
Court for examination there and the course of the
Judges of that tribunal on all important questions is
to give the fullest opportunity for argument before
them and the most patient subsequent deliberaton
their part before delivering their judgment. Thus
year at the least will have been consumed before final
decision will be had.


In the meantime the Congressional State Govern
ments will have been fully organised and the repre-
sentatves of them, in all probability, admitted
in the Congress. Whether it will be thought advis-
able, in such case, to use Judgment OF the Supreme
Court against then if adverse to them should be
rendered. may be quite matter Of doubt, with
men of most intense Southern feeling. Yet we can
not doubt that the prosecution of such suit, to
final Judgment of the court which is the especial voice
of the constitution would be due to our own past and
to vindcaton in the future.