Page images
PDF
EPUB

determine political questions. In this, Congress assumes more than is true. The judiciary has properly decided that it will not determine political questions, but will confine itself to those of law; but that on political questions it will follow the action of those departments that control such questions. But it has not said that Congress alone can determine political questions. On the contrary, in Luther vs. Borden—the Rhode Island case (7 Peters, 1)—the Supreme Court expressly recognizes the right of the President, where there are two parties, each claiming to be the true State government, to decide the question, and the court followed the decision of President Tyler on that subject. The Chief Justice said: "If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress. . In cases of foreign nations, the government acknowledged by the President is always recognized by the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union."

Mr. Trumbull, in the bill lately introduced in the Senate, has not truly stated the action of the Supreme Court in past cases, nor is he correct in stating that it rests exclusively with Congress to determine whether a State government exists or not, under the reconstruction laws. Under the decision quoted, the Executive has as much right as Congress to determine that question, and the courts are bound to recognize his acts. Congress seems to suppose that it can force upon a State what it thinks is a republican form of government. It has no such power. When Congress admits a State, it cannot go back of the admission and inquire whether, in the judgment of Congress, it has a republican form of government. The United States have guaranteed to protect a State in such a form. But until the State calls upon the United States to fulfil this obligation, the government has nothing to do with the question. If the State organized a government satisfactory to itself, that is all that can be required. Congress has no

The guaranty is by the United

special power over the subject. States, and not by Congress. That body is not clothed with any special power to determine whether a State has or has not a government republican in form, which it is to protect, before it is called upon to fulfil the guaranty. The statutes of the United States, as in the Rhode Island case, place this question in the hands of the President, when properly called upon by the Legislature or Governor. If the power thus provided is insufficient to protect the State, then, and then only, can Congress be called upon for greater assistance, not to make or force amendments of her constitution; but if it is, in the opinion of Congress, republican in form, then it will aid the President in protecting such State. If it has not such a form, then Congress, as one branch of the Government, can refuse its aid, and nothing more. The guaranty is clear and explicit, and Congress cannot by its action, in denying the right claimed, bind any branch of the Government but the legislative. If a State is satisfied with its government, even if not republican in form, Congress cannot change it, nor require the State to do so, nor can it refuse any of its constitutional privileges because it will not change. While Rhode Island lived under its charter from an English monarch, its government was not republican in form, and still the Federal Government, as late as 1843, fulfilled its guaranty of protection, and, on the action of the President, sustained it against the Dorr government, which represented the majority of the people, with a constitution republican in form. The recent movements in Congress are based upon these principles-that Congress alone controls all political power; that they have the exclusive right to determine what laws are political; that they determine all the reconstruction and other kindred laws to be political, and therefore no other department of the Government has authority to do or say any thing concerning them; and they forbid the Executive and the courts from construing or acting under them. In all this Congress is clearly wrong, and attempting to usurp the powers of all other departments of the Government. If this is to be submitted to, then we live under a consolidated Government, without distribution of powers, and where the Legislature can make, construe, and execute laws with no power of restraint

upon it, and the courts are mere ciphers. Instead of a Govern ment having three departments, it would consist of one only.

Should the President be convicted and removed from office, and Mr. Wade come into the presidential chair, the Supreme Court is to receive further attention from Congress. Instead of permitting the number of judges to be reduced to six, as the law now requires, it is the intention to increase it to thirteen, thus allowing him to select and add six to the present number. These will, of course, be partisans of the extreme radical stamp. By this large addition it is expected that the court will long remain Republican, and sustain whatever laws that party in Congress may pass. In that event, there will be no possible restraint upon their exercise of power. With Mr. Wade at the head, and the Court obedient to the will of Congress, our Government will become changed in its character, and constitutional liberty cease to exist among us. We shall live under a purely legislative tyranny, devoting its energies to taxing the people and to the perpetuation of its power.

128.-DESTRUCTION OF THE HIGHEST COURT IN THE DISTRICT OF COLUMBIA.

When Mr. Lincoln came into power there was a civil court in the District of Columbia, called the Circuit Court, with similar powers of other United States Circuit Courts, and which was also an appellate court. There was also a criminal court, with the usual powers of a Court of Oyer and Terminer and General Sessions. In the former were three able, learned, and good men, two of whom had sat there for many years. There was a vacancy in the criminal court, the sole judge having recently died. In the civil court the judges continued to execute the Fugitive-Slave Law, and to issue the writ of habeas corpus, as had been usual before the war. This gave great offence to the Republicans, who declared that these were impeachable offences. Congress took up the subject, but, instead of impeaching, a bill was promptly passed by both Houses, and approved by Mr. Lincoln, abolishing both courts, and creating one with four judges, to be called the Supreme Court of the District, with both civil and criminal juris

diction. This court was filled with non-resident judges-one from Ohio, one from New York, one from Delaware, and one from Virginia, neither of whom had any knowledge of the laws or the practice under them in the District, and neither with any considerable reputation as lawyers. Three of them had been in Congress. They all had the reputation of being extreme partisans of the Republican stamp, except the last, who was only moderate. The new Chief Justice has been, since his appointment, an active and busy politician of the severe kind. A majority of this court could be relied upon on all questions where Republican partisan grounds were at the bottom, and it was not expected that it would venture to declare any law which Congress might pass to be unconstitutional, or any act of President Lincoln or his administration to be illegal. Here was a court, composed of men in no wise inferior to those now on the bench, legislated out of office for political purposes. No charge was ever preferred against Judges Dunlop, Morsell, or Merrick. The bar were satisfied with them, as were the suitors of the court. But they had the audacity to execute their duties as judges, and, it was feared, would not prove subservient enough to please the Administration. They stood, politically, one Democrat and two Whigs. Their commissions, like all commissions of judges of the Federal courts, were during good behavior. The court is abolished and gone, by statute, but they are judges still, in waiting for an opportunity to perform their duties, and entitled to pay as such, though they have received none since they were legislated off the bench. Political legislation, to overthrow or build up courts, is against the genius of our institutions. The Constitution, by express provision, protects the courts from such wanton acts. But nothing stands long in the way of the partisan feelings and interests of the Republicans of our day. They treat the Constitution as a by-gone instrument, not entitled to respect when it stands in the way of the will of Congress.

129.-EXCHANGE OF PRISONERS DURING THE WAR.

One of the objections raised against Mr. Cameron, as Secretary of War, was his declining to exchange prisoners of war upon

the usual terms. When Mr. Stanton came in, he openly avowed his intention of making exchanges, on the ground of humanity to our men then prisoners with the rebels. The sentiment as avowed was not only justifiable, but was clearly right. How far he acted in conformity with his professed intentions is not known. But, ere long, exchanges substantially ceased. The Confederates had enacted a statute directing that, when their officers should take negroes who were or had been slaves, they should be sent to the States where they belonged, to be delivered up to their masters, which prevented the exchange of negroes by the Confederate officers. This state of things could only be changed by an act of the Confederate Congress, which was not done. The abolitionists and many Republicans took exceptions to exchanging at all, unless the negroes should be included. They were willing the white soldiers imprisoned by the secessionists should remain shut up, with hard fare, or almost none at all, and die off, if the negroes could not also be exchanged at the same time, to prevent their delivery to the State authorities to be returned to their masters, in conformity with the Confederate law. The appeals of those suffering in prison and their friends produced no change in the purposes of those who were willing to punish thousands of patriotic white men to carry a point concerning the negro. They were willing to see white men perish, as they did in vast numbers, rather than to permit the slave to be returned to his master if claimed. Their sympathies were all for a few negroes, leaving the white men to perish for want of freedom and exercise, and the food, clothing, attention, and the kind treatment of home. They complained of the injustice and inhumanity of the treatment of our prisoners, but stood in the way of relieving them by exchange. They would permit the white man to be punished, to starve and die, in preference to having the negro returned, under the Confederate law, to the man who was bound to take care of and provide for him. If they could not secure all they wanted, they preferred all our men in prison should die miserable deaths.

The public has never been satisfied with this refusal to exchange prisoners. The Confederate authorities offered several times to exchange, wrote letters to our officers, and they wrote to

« PreviousContinue »