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T HE ATLANTA WEEKLY S U N.
THE DAILY SUN.
Monday October 2
“Mr. Stephen^ and Law
Order. 7 77
and
Foolish and Mischievous Pro
gramme.
A correspondent of The Atlanta
Daily Son, signing himself “Titus,”
whom that paper underwrites as “one of
the first men in Georgia,” lays out a
programme for the approaching session
of tiie Legislature, some port of which
we do not except to, but we hope and
trust no man in the Legislature will be
controlled by the following suggestion:
2. At> a matter of principle, we will not take into
consideration the question of eligibility. We be
lieve the people of Georgia are pretty well united in
their indorsement of Mr. Stephens’ programme,
which is to insist upon all of our constitutional
rights. We have elected Senators, and they have
l>oen wrongfully and unconstitutionally rejected.
To send those who have l.cca made eligible—merely
because they aro eligible—would be begging the
question, aud au admission that Congress has the
right to make eligible or ineligible our Itepre«enta-
tives and Senator-. It wcnld be a "departure.” It
would l»e ’’acquiescing in and accepting” the fraud
ulent end illegal rulings of Congress. Let ns be
consistent In all thing.’.
We should think the fate of North Car
otin a and Zebnlon B. Vance would be
sufficif nf illustration of the folly and im
practicability of the course recoin mend
ed. The Democrats of Georgia owe it
to themselves and the country to select a
good and safe man t"«»r the Senate of the
United States, possessing the qualifica
tions for a seat in that body.
Wo clip the aboTe paragraph from the
Macon Telegraph and Mcsscng-rr, of the
28th instant In reply, we have only to
say, that wo do not see anything, either
“foolish” or “mischievous," in the pro
gramme of onr correspondent, “Titus,”
so denounced by onr cotemporary of
Macon.
“ Titos” very distinctly states his po
sition to be, as we understand him, that,
in the choice of United States Senator,
the Democrats in the Legislature should
not be controlled by the “disability,” so
called, of the 11th Amendment. This “dis
ability,” every man in Georgia, calling
himself a Democrat, we believe, professes
to hold to be utterly unconstitutional—
fraudulent—and, as matter of course, ut
terly void; and that it should be so held
and pronounced by the United States
Senate, in passing upon the qualifications
of members of that Body; that qualifier
tions are fixed in the Constitution; and,
as we have said before, any attempt to
chango them, by usurpation, is as fla
gitiously wicked against the liberties of
this country, as to add or take from the
sacred text of the Scriptures, would be
impiously wicked against the mandates
of the Most High 1
Is this position true or not? Who will
undertake to gainsay or deny it? Is it
“foolish” to proclaim a great vital “Irulh,
or “mischievous" to maintain it, by free
men, in casting their rotes under the Consti
tution” ? How else can liberty and right
bo maintained, in a peaceful and Con
stitutional way ? Are free men so
“foolmh” as voluntarily to surren
der their admitted Constitutional
rights, and quietly indorse, by their votes
a surreptitious deprivation of them, with
a view of thereby maintaining them?
Coaid anything be more “foolish” in
itself, or ruinously “mischievous” to all
that is held dear to them, than such a
coarse as that?
Were not tho liberties of England res
cued from Tory administration, after
years (f contest over the Middlesex elec
tion? The House of Commons had, by
usurpation, glaring and foul, fixed a
“disability,” so called,upon "Wilkes, whom
the people of that district saw fit to
ohoose as their member.
On account of this “disability,” he was
refased his scat. Another election was
ordered. Some thought., in this state of
things, that it would be belter for the voters
to select some other Whig, who would be
permitted to take his seat.
So did not think Chatham, the greatest
Statesman England ever produced. He
urged upon the people of Middlesex never,
in this way, to yield the right, but to re
elect Wilkes—and to continue to do so,
“toiics quotics,”—that is, just as often as he
should be refused a seat, because of the
unconstitutional “disability,” so called.
His advice was followed. Wilkes was
again, and again elected, and again
and again, rejected by the House,
until, finally, Luliei-eU, his Tory competi
tor, was decided, by a corrupt House, to
be entitled to tho seat,on the grounds, that
- the votes cast for an “ ineligible ” candi
date,were void,arid should not be counted.
This last act of infamy, on their
part, sealed tho doom of the Tory admin
istration. At the next election, "Wilkes
was again returned, and with him a ma
jority of 1 Yhigs in the House, who paid no
regard to thisso-called “disability,” crea
ted by usurpation alone. He then took
his is eat, land the rightful and consli-
tuiional persistence in the case of the
voters of Middlesex, in maintaining
British liberty at the polls, did more than
all other things combined to drive the
Tories from power. Was it “ foolish
was it “ mischievous ?” Now, in rela
tion to tho election of United States
Senator, by the next Democratic Legis
lature, we say, in conclusion,
have no favorite candidate. There are
many Democrats in the State, well fitted
for tho position, to whom the C-ongres
sional “disability,” referred to, does n
apply, as well as many to whom
does—and, all that wo maintain
(and all that “Titus” maintains,
as we understand him) is, that, in
making the selection, tho Democrats
should not, in the slightest degree, bow the
knee to Baal, or do homage to the
“fraudulent amendment,” so called, by
aekiiuvvl-.-dguig, in the stigh(-‘st deg re-. the
righf illness of the usurpations on which
it rests. Let tbe selection be made en
tirety without reference to that iniquitous
outrage upon the Constitution.
We may say more on this subject here
after. 1 his is enough for the present.
A. H. S.
To Hon. A. H. Stephens :
We continue the republication of this
correspondence, as it appeared in the Au
gusta (Ga.) Constitutionalist.
We now give the second letter of “Law
and Order,” addressed to Mr. Stephens,
and his reply to it, with the correction of
several important typographical errors
which occurred in it as published in the
Constitutionalist :
[From tho Augusta <G».j Constitutionalist, Sept 22.]
.ۥ
Yon said on a memorable occasion :
“ The Union is not only the life but the soul
of these States. It is this that gives them
animation, vigor, power, prosperity, great
ness, and renown. And from this alone
spring our hopes of immortality as a com
mon people.” (Speech on the Mexican
appropriation bill.) You spoke of the
Union as it was then. The great disturb
ing element of that Union hits now been
removed. What say you of it now ? Is
it still the Ife and soul of the States ? If
not, why not ? Is it because the Consti
tution has been changed by amendments?
Certainly the difficulty does not lie in
this, per se, for it was changed by amend
ments several times before you made the
speech in which this grand apostrophe to
the Union is found. And then, you
thought, as late as the date of your Cor
ner Stone Speech, that the United States
Constitution was defective, and that,
while adhering to it in its main features,
in the Montgomery C onstitutiou several
important amendments had been added
which would make a better and wiser
government.
|You expressed your decided preference
for the Confederate Constitution over the
United States Constitution 1 Then the
real difficulty is, that, in your judgment,
the changes made by the 14th and
15th Amendments were made, because
violative of the rights of the States and
at war with the true Republican theory
of the Government. And here you and
I, and all the National Democracy, as I
understand them, agree fully. Bat, then,
these are merely our opinions and con
victions; while the opinions and convic
tions of the majority are against us, and
that majority, unfortunately, makes our
laws and controls the Government for the
nonce. We say it is bad policy to ask
now (if it is ever done) for a recantation
of a policy upon which the dominant
party prides itself, and claims as a part of
the brilliant fruits of the war. While
you, on the other hand, say No! now,
now is the time that we must ask them to
reconsider their action, and recall their
objectionable policy, as embodied in the
two last amendments.
ent from that you quote. It is that each
We say, if this demand of yours and
those wh.o agree with you, must be made,
postpone it at least until the North has
wiped the war sweat from her brow. It
is simply absurd, with all due deference
be it said, to expect any other result
from pressing the policy you insist upon
at this time than a humiliating defeat of
the Democracy in 1872, and the confer
ring perhaps of an indefinite lease of
power upon tbe Radical party for years
to come. Your policy of ignoring the
amendments as nullities, when you shall
get a President elected on your theory,
to do it, you say, is in strict accord with
the good old theory and practice of the
Jeffersonian Democracy. Let us see.
Your position is, that a President must
be elected in 1S72 upon the avowed as
sumption that the 14th and 15th Amend
ments are nullities and no longer to be
recognised or obeyed—that after he is
installed, having been elected npon this
platform, it will • only be necessary for
him to announce that he will regard and
treat them as null and void, and the
Avork will be thus peacefully, but effectu
ally accomplished. Never avos non sequi-
tur more apparent. You say, and say
again, and oftentimes repeat, that Mr.
Jefferson so treated the Alien and Sedi
tion laws, and that yon are therefore ad
vocating a policy sanctioned by the ut
terances and action of that truly great
statesman! Pardon me, sir, if I say just
here, that you usually discriminate more
clearly and accurately in the selec
tion of your ground and the authorities
relied upon to support it. In the first
place, the questions are not the same.
The Alien and Sedition laws were mere
laws—acts of the Legislature. And the
question raised by Mr. Jefferson and his
party was as to the constitutionality of
these laAvs—in other words, were they
not in conflict with the Constitution, and
Repnblican principles and ideas as incul
cated and protected by that instrument?
He held that they were, and therefore,
in his judgment, null and void.
But he never dreamed that he had
any right to say that such laws should be
disregarded aud ignored, by the courts
and tlie people,while they remained unre
pealed and nnexpired! On the contrary,he
distinctly asserted the right of each co
ordinate department of the "Government
to construe the Constitution for itself,
and to exercise its powers separately and
independently of the other two. Hence,
he claimed for himself the right, as Pre
sident, to release from prison persons
who had been imprisoned for violations
of laws which had already expired by
their own limitation, and which, though
dead, were destined to live in execrated
memory so long as constitutional liberty
should be sacred to the people of the
American Republic. Bat did he release
them by the mere fiat of an unauthorized
edict ? Did he do it in the spirit of au
tocratic self-Avill and revolutionary de
fiance? Far, far from it. This was not
the style of that illustrious man, whom
you so frequently quote and canonize, as
to justify the inference that he is the sole
divinity in the political temple where yon
worship. He expressly declares that he
did it in pursuance of the pardonin^
power. This power was unquestionably
vested in him by the Constitution. The
laws bad expired. The public voice of
the country had just spoken in unmeasu
red condemnation of their constitutionali
ty and their polipy._ Yet these unfortu
nate men were in jail by virtue of their
authority, and there was no way left to
the President to give relief and take them
out of the durance vile in which they had
department is truly independent of the
olners, and has an equal right to decide
for itself what is the meaning of the
Constitution in the cases submitted to its
action, and especially when it is to act
definitely and without appeal. I will ex
plain myself by examples, which, having
occurred while I was in office, are better
known to me, and the principles which
governed them. A Legislature had pass
ed the Sedition law. The Federal courts
had subjected certain individuals to its
penalties of fine and imprisonment. On
coming into office I released these indi
viduals dy the roAVEB of FAKDOX com
mitted to Executive discretion, which
could never be more properly exercised
than where citizens were suffering Avitli-
out the authority of law, ot, which was
equivalent, under a law unauthorized by
the Constitution, and therefore null.”—
After citing two or three other instances
where he had acted as President in har
mony with this theory of his, he says:
“These are examples of my position,
that each of these departments has equal
ly the right to decide for itself what is its
duty under the Constitution, without any
regard to what the others may have deci
ded for themselves under a similar ques
tion.” Now, let me ask, where do you
find in all this, authority or support for
yonr singular revolutionary view’, that
the President elected in opposition to the
principle and policy of a law still in force
and operation, however obnoxious, may,
by his simple magisterial or kingly edict
declare it null; and the people, by virtue
solely of this, his potential ipse dixit, be
released from obligation to observe the
law and the judicial expositions of it ?
Yon seem to have a great dread of impe
rialism. Bui here is imperialism with a
vengeance. Quoting your own lan
guage, uttered in one of your great
est speeches, language Avhich made my
heart swell with pride as I read it:
“I would not turn upon my heel to
choose between masters.” I want
no one-man power; I shall never recog
nize any master but the people, and I aui
one of them. It is incumbent upon you
to show that Mr. Jefferson ever advo
cated such a solecism in government—
that ho favored the doctrine of nullifica
tion of a living operative Iuav, nay, more,
that he would have claimed the right, by
his fiat, to annul a part of the organic law
itself. Thevery textl have quoted shows
he would have the action of each depart
ment to be independent of the other in
the constitutional construction of the
law, and each for the time obeyed and
observed in its legitimate sphere—look
ing to appropriate remedies from the only
appropriate source for the rectification of
all errors in judgment, aud perversions of
vital principles.
Nor does he leave us in doubt as to the
proper source, for he emphatically as
serts that “independence can be trusted
nowhere but Avith the people in mass.—
They are inherently independent of all
but moral law.” You have recently
turned your batteries away from the Ne\v
Departurists.or more appropriately speak
ing, the anti-nullification and anti-revo
lution Democracy, who simply accept,
without approving or indorsing the
amendments; but you retain in your po
litical casket the one principle which you
seem to regard as a crown jewel, to-Avit:
the principle of the right of Presidential
annulment of the obnoxious amendments,
by mere dictatorial proclamation to that
effect. The National Democracy every
where will rejoice to observe that there
remains now no ground of difference be
tween them and yourself but the simple
one of remedy. And as you have lately
favored a reference to the Supreme Court,
which is an improvement on your first
proposition, they can but hope you will
yet adopt with them the quiet, broad,
constitutional and wise principle and
policy of leaving the whole matter of
these amendments to the common sense
and patriotism of the people, who, in
their own way, and in their own good
time, will do in reference to them Avhat
shall be right. "When that time comes,
the remedy will be at hand, and it will
neither be a new nor a revolutionary one,
bat one that has been resorted to in the
former history of the Republic, Avithout
difficulty, and always successfully, and,
it is believed, advantageously.
In regard to the ratification of amend
ments, it would seem that as to whether
the manner or form had been complied
\rith would be a political question with
which the judiciary could have nothing
to do. Mr. Jefferson, in his letter to
Judge Roane, already quoted, and Mr.
Calhoun, in his famous Fort Hill letter,
both repudiate the doctrine of judicial
interference with questions purely politi
cal in their nature. I will quote a few
sentences from the letter of the former,
as he seems to be an authority of the
greatest weight with you. In referring
to the fact that the judiciary was inde
pendent and could not be reached by a
direct vote of the people, he says: “That,
therefore, has continued the reprobated
system; and although new matter has
been occasionally incorporated into the
old, yet the leaven of the old mass seems
to assimilate to itself the new; and after
twenty years confirmation of the federa
ted system by the voice of the nation, we
find the Judiciary, on every occasion,
still driving ns into consolidation.” In
denying the right they usurp of exclu
sively “explaining the Constitution,” I
go further than you do, if I understood
rightly yonr quotation from the Federal
ist, of an opinion that “ the Judiciary is
the last resort in relation to the other de
partments of the Government, but not in
relation to the rights of the parties to
the compact under which the Judiciary
is derived.”
If this opinion be sound, then indeed
is our Constitution a complete/ek) de se.
For intending to establish these depart
ments co-ordinate and independent, that
they might check and balance one an
other, it has given, according to this
opinion, to one ot them alone the right
to prescribe rules for the government of
the others, and to that one, too, which
is unelected by, and independent of
the nation. In view of these declarations
of his, what would he have said to a pro
position for submitting to the Supreme
Court of the United States whether
amendments, duly proclaimed as having
been adopted, Avere in fact adopted and
made parts of the National Constitution?
strength, and bring defeat, sore defeat,
on the friends of true Democracy and
constitutional liberty.
Bat let ns suppose once more, for the
sake of the argument, that you could
annul the 15th Amendment; on what
principle is it that yon would propose to
exclude the negro from the ballot? By
property qualification which would
also exclude the poor white men? Be
not deceived; for though somewhat a
younger man than yourself lam an older
Democrat; and I tell you the Democracy
of this country will never sustain this
dogma of aristocratic mould. The 15th
Amendment does not give the ballot to
the negro. It only declares that he shall
not be excluded from the ballot by rea
son of his color or his race. Georgia in
the exercise of her sovereign will, can
still exclude him, but on what other
ground besides the inhibited grounds,
will sho place his exclusion? The. ques
tion is full of difficulty. Let ns not now’
venture upon a new solution of it.
In conclusion let me say, you give un
due importance to the necessity of mak
ing known in the Democratic platform
of 1872 our disapprobation of these am
endments and their iniquitous corollaries
known as the reconstruction laws. The
protest of the Southern Democracy is
fully upon the record, and their position
of hostility to the whole corrupt brood
cannot be misunderstood. What the
Democracy now wants to. insure its tri
umphant success iu the approaching
Presidential Campaign, is not excited
angry discussion, or subtle disquisition
upon dead issues or abstract theories of
government, but a united, bold front of
all the conservative elements in the old
Republic in one grand, harmonious as
sault upon the extravagances and corrup
tions, the recklessness and stupidity, the
selfishness aud sectionalism of the domi
nant Radicalfaction now holding high
carnival in her consecrated halls, sacred
in days gone by as the temples of Repub
lican simplicity aud purity, wherein wor
shipped the bravest, the truest and the
best. The ancient glory and renown of
the great old party will be folly achiev
ed if the time-honored flag be unfurled
in that race, bearing npon its folds,
plainly inscribed. “Down with the
Radicals! down w r itli the bayonet 1 down
Avith the sword 1 Up with the Constitu-
ton I up with, olive branch 1 up with
Law and Order.”
oners he immediately discharged, upo n
the grounds that the act of Congress nn'
der which they were indicted was “ null
He so says in his letter to
the nerfectiv Wit *' he ,. exen : ise of j It is apparent that you are not sustained ;
gwpcrfe^ly togitiinate fenefaon of par- by Mr. Jefferson in either of yourncsi-l
tions as constitutional and rightful rerue-
don, which attached to the Chief Execu
tive office. And he promptly and right
fully exercised it. He would doubtless
have done so even had the law been still
of force, since his action would have
been in harmony with a constitutional
privilege conferred upon him.
In his letter to Judge Roane, bearing
date September 6th, 1819, Mr. Jefferson
uses the following language: “My con
struction of the Constitution is very cliffer-
dies. But suppose you were, what can
be said for the policy of your cause at
this time? Nothing, absolutely nothing!
In the present state of the public mind
at tho North concerning these amend
ments, it is worse than folly—it is mad
ness to suppose that agitation of the
question of thek constitutional propriety
and legal validity could have any other
effect than to unite the whole opposition
io Augusta (Ga.) Constitutionalist, 28th
- ■ ! - September.
Liberty Haul, )
CjraavfordvtlIiE, Georgia, >
26th September, 1871.)
To the Editor of the Constitutionalist:
My Dear Sib: You will, I trust, con
tinue the extension of your courtesy, by
allowing me to respond, through your
columns, to the second letter of “Law and
Order'' addressed to me, which appeared
in the Constitutionalist of last Friday.
The general tone and spirit of this let
ter, as well as the first, commend it to my
most deliberate consideration. They
both bear upon them the stamp of strong
convictions on the part of the writer, and
evince a disposition to discuss public
questions upon their real merits, and in
accordance with the principles of true
patriotism. It is a pleasure to me to
meet one who thus enters the arena in
argument upon tbe “New Departure,”or
any other subject on which my views may
be deemed to be erroneous. The con
trolling object with me in all discussions
is the ascertainment of truth, and its
unfaltering maintenance when ascertained.
Taking it for granted that “Law and
Order” has the same objects in view that
I have, he must allow me to say that, ac
cording to my understanding of the sub
ject, he is not only in error as to the nn
ture and design of the “New Departure’
movement, as I stated in my reply to his
first communication, but also quite at
fault as to the mode and manner in Avhich
propose to get rid of the admitted
fraudulent amendments.”
On this latter point he seems to bo of
opinion that I propose simply to elect a
President who holds these amendments
to be “fraudulent,” and that the Presi
dent thus elected shall so declare them to
be, “and annul them by his proclama
tion.” This course also seems to him to
be not only revolutionary but the embodi
ment of Imperialism! “Imperialism
with a vengeance 1” says he.
Now I beg to say. to him, that he has
no clear conception of the principles ad
vocated by me for getting rid of these
amendments, so-called, if he supposes
they could possibly lead to such consc
quences. He says, thougli a “younger
man” he is an “older Democrat” than I
am—this cannot be if by Democrat he
means one devoted to the principles of
the Jefferson school of politics; for these
I took in Avith my mother’s milk; and he
hardly imbibed them at an earlier period
in life. They constitute the highest
prized heritage I received, from both my
maternal and paternal ancestry; in them I
Avas reared, and in strict accordance with
them is the programme of policy advo
cated by me at this time, as I shall now
proceed to show.
In the first place, then, I do not pro
pose to get rid of these “fraudulent
amendments” by a Presidential Procla
mation, “annulling them.” It is true,
do maintain, that one mode of relief from
their operation is the election of a Presi
dent who Avill hold them to be “fraudu
lent,” and, therefore, “null and void,
in all cases arisimg under them, which may
come before him in his official position as
Chief Executive ; just as Mr. Jefferson did
the “Alien and Sedition Acts.”
This will not be by “ Proclamation of
annulment,” hut by a simple discharge of
prisoners. This, moreover, is only one
of many very efficient modes of 'relief
against their oppressive operation, advo
cated by me. This one is certainly very
efficient in affording relief to all who may
be put “in durance vile,” under prosecu
tions for violations of “enforcement
acts,” “Ku-Klux bills” aud the like,based
entirely npon their assumed validity.
If a President who so holds can be
elected, that, I say, is certainly one very
efficient aud constitutional mode of get
ting rid of their vital power of tyranny.
Iu relation to Avhat I have said upon the
analogy between this one of the many
effective remedies that maybe applied by
the people at the p>olls—and the position of
the Democracy in 1S00, under the lead
of Mr. Jefferson, towards the “Alien and
Sedition Acts,” I will here only add, that
that analogy, in my judgment, is com
plete, notwithstanding all that “Law and
Order” has said to the contrary.
Mr. Jefferson was elected upon the
open declaration of the Democracy that
these acts of Congress “ were not'laws,”
“but nullities.” It was known that Mr.
Jefferson so held them to be. When he
came into power ho found many persons
in jail, suffering the penalty of an alleged
violation of one of them. These pris-
and void.” Jtle so says
Judge Roane as quoted by “ Law and
Order.” The act under which these vic
tims of oppression were suffering had not
expired so far 03 concerned the penalty
imposed on those who had been convict
ed for violations of it, and were then in
prison under it; nor had it expired so far
as related to future prosecutions of any
who might be charged AA’ith violations of
it, before he came into office. It is Avliolly
immaterial whether he called the dis
charge a pardon, or designated it by an
other name. He justified his action ex
pressly upon the ground that the act of
Congress under Avhich these prisoners
were suffering was, in his judgment,
“null and void.”
Is not the analogy, therefore, com
plete? Would Mr. Jefferson not have
acted in tbe same way, if there had been
any prosecutions and convictions under
the “Alien Act,” which had not expired
in any of its provisions? which Avas still
upon the Statute Book unrepealed, and
Avhich he had declared, in his judgment,
was “no law,” “but a nullity?” How can
“Law and Order” assume, upon rational
principles, that Mr. Jefferson never
would have “dreamed” of such a course?
If he, as President, refused to obey a
mandamus of the Supreme Court, (as we
shall see) because it Avas, in his opiuion,
null, would he not, upon the same prin
ciples, have been bound not to allow the
execution of a judgment of a subordinate
court, founded upon an act of Congress,
held by him to be equally null aud void?
The duties of his office as President, re
quired him to execute laws, not nullities;
nor was he bound by the decision of the
courts as to what was, and what Avas not,
constitutional law, in any case. On this
poiut Mr. Jefferson held, and rightly
held, that under our system of Govern!
ment, each of the seA’eral Departments—
the Legislative, the Ji .diciary and the
Executive—is independent, and that each
for itself has the right to decide all con
stitutional questions involved in all cases
coming before it and that neither is bound
by the judgment of either, or both of the
others, upon the same, or like cases.
In this very letter of his to Judge
Roane, quoted by “Law and Ordei',” in
speaking of the doctrine that “the Ju
diciary is the last resort in relation to the
other Departments of the Government, “
&c., he expressly says: “If this opinion
be sound, then indeed is our Constitu
tion a complete felo de se. For in
tending, to establish these Depart
ments, co-ordinate and independ
ent, that they might check and
balance one another, it has given, accord
ing to this opinion, to one of them alone
the right to prescribe rules for the gov
ernment of the others”. How, then, I
repeat, can “Law and Order” assume tliat
Mr. Jefferson “never dreamed1” that
President had the right to turn out of jail
instantly every victim of oppression, suf
fering, under sentence of a Federal Court,
the penalty of violating an act of Con
gress, which he held to be no law, and
nothing but a usurpation, even though in
was still on the Statute Book unrepealed,
and even though the Supreme Court had
held it to be constitutional ? We have
Mr. Jefferson’s OAvn words for it that the
Judiciary Department has no power to
presalbe rules for the government of eith
er tho Legislative or Executive Depai-t-
ments. On all such questions each De
partment must judge and act for itself.
Is this a “solecism in Government ?” If
so, I have clearly shown that Mr. Jeffer
son held it, and I think he rightly held
it.
If tho Democracy, therefore, should
elect a President iu 1872, who holds the
14th and 15th amendments to be no right
ful parts of the Constitution, because
they Averie earned by “usurpation and
perfidy” (as they unquestionably were),
would not such a President, upon the
same grounds as Mr. Jefferson acted up
on, promptly release all who may be
in jail, under indictments for alleged vio
lations of the “Enforcement Acts,” pass--
ed to carry out these infamous usurpa
tions ? It is entirely immaterial with me
whether he should call his discharge, an
order for “general jail delivery” of the
victims of iniquitous oppression, a par
don, or by any other name. The practical
result and the mode of reaching it are all
that I and the people at large have any
interest in looking to just now in the dis
cussion of this question. Would such
release, or pardon (if that phrase suits
better) be the “mere fiat of an unauthor
ized edict ?” Would it be an act perform
ed “in the spirit of autocratic self-will and
revolutionary defiance ?”
Is this the “Imperialism withaven-
gence” to which the doctrines advocated
by me are supposed to lead? If so, I say,
well will it be for the Peoples of this
country if they are never cursed with an
imperialism of a very different character.
With the views of the distribution of
the powers of the Federal Government,
Mr. Jefferson, as President, refused to
obey a mandamus from the Supreme
Court, as we have said. This was iu the
case of Marbury and MadisoD, as stated
by him in that very letter to Judge Roane,
from which “Law and Order” quoted an
extract. In the same letter he says that
he did not submit a certain treaty to
the Senate, because he would not have
which I have proposed for geUiZ^,
the injurious and hurtful
mo lujuiiuuo minim ouerahV^ :
these “fraudulent amendments ”
he seems not to understand, and
I ask the special attention of “L/w, ,
Order." .
no remedy
IT
He seems to thank that
ft/ lor these
QjuJ
is
except repeal or Revolution! TrL^ ron B 3
we differ widely. I believe in neitlJ- 11 )
his remedies. Unconstitutional ac L ,
legislative bodies, either Federal or Stat
are not laws; they are simply ads, toidt\
themselves, and require no repeal to beV
rid of. Repeal is applicable only to Off
constitutionally enacted—the law
order remedy for — ■ '
executed it if the constitutional majority
of the Senate had been iu favor of it
He also instanced the cases of Duane and
Smith, both standing in exactly the same
circumstances. Duane was held not to
be a citizen by the Supreme Court, Avbile
Smith was held to be a citizen by the
House of Representatives, and was ad
mitted to a seat in that body. These in
stances illustrate his views of the inde
pendence of each other of the three
Departments.
Mr. Jefferson also held, as stated in
his Roane letter, and Mr. Calhoun too,
held, as appears in his Fort Hill letter,
and so do I hold, that the Federal Courts
have no jurisdiction over what they term
ed purely “political questions.” These,
as stated by them, were questions which
involve “the rights of the parlies to the com
pact tinder which the Judiciary is derived.
Slicll. for Uaa rirrlif. of n. fttai
an unconstitutional
act is not a repeal of the act, bnt an,
peal to those Judicial tribunals
which devolves the duty of interpreting
and administering the laws, and in the
discharge of which duty it is incumbent
on them to decide all ads passed by the
Legislative Department, without due au
thority, to be unconstitutional, and there*
fore null and void from the beginning, and
totally inoperative, Avithout any repeal *
It is with this view, therefore, I hold
that these claimed amendments, founded
upon nothing but notorious usurpation
involve not only political questions, in tho
usual acceptation of these terms—
(that is, popular questions for the people
to consider and decide upon at the
p>oUs, in the election of men to hold
office, upon Avlioru they may come
for action, either as President or mem
bers of Congress)—but judicial questions
to be derided.by the courts; aud that
through these constitutional instrumentalities
there are ample remedies for the rectifica
tion of the wrongs intended by them
Avithout ever for once looking to their
repeal, much less to revolution as a remedy.
I have on several occasions shown how
this rectification may be effected through
the instrumentality of the courts. But,
as what I have said on this subject may
not have been seen by “Law and Order,"
(and I suppose not, from what he has
said) a brief repetition here is deemed
proper. " •
When, therefore, parties are arraigned
on trial for violations of the “Enforce
ment Acts” of Congress, the whole ques
tion touching the validity of these amend
ments (or the one up.on Avhich rests the
particular case before the court) will
necessarily come up, if tho defendant in
prosecution sees fit to raise it. The act
of Congress on Avhich the indictment is
founded wilt first be produced. Then
the power of Congress to pass this act
must be shown. The authority relied
upon for this will, of course, be the so-
called amendment. When -this is pro
duced, how it .became part of the Con
stitution must be shown, if its validity be
objected to. Inquiry into this question
will not be estopped, as some suppose by
the attachment of the great seal of State,
by the Secretary of State, to a certificate
that from the returns in his office of tho
action of the several States upon it, it
appears that it was duly adopted by the
number of States required by the Con
stitution. This certificate, as all such in
similar cases, will be primafacie evidence
only of the facts certified tiv but not
conclusive as to the facts upon issue
joined on them.
The modes and manuer in which a new
provision may be incorporated in the Con
stitution, by Avay of amendment, are ex
pressly pointed out in the 5th article of
that "instrument—Avhether the acts of
Congress, in relation to these amend
ments, Avere in accordance Avith the pro
visions af this article of the Constitution,
directing how it may be properly amend
ed, is as much a question for tlie courts
to (inquire into, as any other act of Con
gress. On the question thus jiresented,
the records themselves Avill show the
plaiu, palpable, and undeniable “usurpa
tions, fraud arid perfidy” by which these
so-called amendments have been, and are
claimed to be rightful parts of the Consti-
tion.
Who can suppose that any Judge, less
infamous than Jeffries, Avould hesitate an
instant, in deciding that these measures,
carried by such infamous acts, form no
part of the Constitution; and that they,
with all other acts of Congress, and parts
of acts, intended to give them -force and
effect, as such, are utterly null arid void?
The idea that the Judiciary Depart
ment of the Government is preduded
from inquiring into the acts of the Leg
islature, or Executive Departments,
touching amendments to the Constitu
tion, because these two Departments con
stitute the Political Power of the Govern
ment, in contradistinction to the Judicial
Power is one of the worst political here
sies of the day. This is a European
idea, founded upon European systems of
government, and not at all applicable to
this country or our system of Govern
ment.
With us," in both the State and Federal
systems, the exercise of Supreme Political
Powers, by delegation, over specified sub
jects, is divided into three co-equal, co-or
dinate Departments, each being perfectly
independent of the others. These are,
as before stated, the Legislatke, the Ex
ecutive and Judiciary Departments. The
Judiciary is no more bound in any case,
coming properly before it in its sphere,
by what Congress, or the President, or
both together, shrill declare the Constitu
tion, or any of its amendments, to be,
than the president, or Congress, is bound
in their respective spheres by any decis
ion on such subjects by the Judiciary.
touch, for instance, as the right of a State
to secede.
Over this class of questions, involving
the reserved rights of the States, under
the compact of Union, which they termed
questions “purely political,” Mr. Jeffer
son and Calhoun both held, that the
Federal Courts had no jurisdiction
but neither of them ever denied
that these Courts had jurisdiction! Would
over every' question arising under an act
of Congress brought before them, in a case
made by any citizen affected by it, iu any
State of the Union! This was one of the
chief objects for which these courts were
provided iu the Constitution.
This brings us to the'cousideratioa of
another one of the numerous remedies
Suppose that the present incumbent of
the Executive Chair should, a la mode
Louis Napoleon, issue a Plebiscilum em
bodying another new amendment to the
Constitution, doing away with that clause,
which noAV guarantees the freedom of tbe
press, and should call upon the people in
all the States to adopt or reject it at the
polls by popular vote, to be taken in a
manner and mode prescribed by himself,
totally variant from the mode and man
ner prescribed by the Constitution, and
suppose, after getting an extorted ratifi
cation of it through the use of bayonets,
he should direct his Secretary of State to
make proclamation, AA’ith the great seal
of State attached, that this new amend
ment had been duly ratified, and Avas,
therefore, a valid part of the fundamen
tal law of the Land !
In such a case as this, is there a sane
and honest mau in the United States, who
would maintain that the courts could not
go behind the great seal, so attached by
Avhat is called the Political Power, and
that they would be estopped by this pow
er from inquiring into the validity of such
an attempted outrage upon the Constitu
tion and the liberties of the people?
such a case bo in any way
different either in character or enor
mity, from tlie ones boav under
consideration ? The only difference
is, the cases we are considering
Avere carried by the open and palpable
usurpations of Congress, while the other
would be carried by like usurpations on
the part of the Executive. But has the
