Newspaper Page Text
SPEECH oy
BM, HERSCHEL V. JOHNSON,
OF GEOCUIA,
OX DIE SC rut.MU COURT DILL, IS TliK COSKEHE-
KATE STATUS SENATE, FRIDAY, CEB. (i, 1 rd'i'-j.
time jurisdiction ; to controversies to vrliicb ] In that Convention,tlie proposition
| the Confederate States shall be a party ; Unetly made, hut not adoptee. Outhe
to controversies between two or rnoie loth of June, 178/, Mr. Patten-on subnut-
States- between a State and a citizen of ; ted his plan of government. secono
! another State, where the State is plaintiff; j resolution, after enumerating the powers to
• between
dis-' with those contained .in^ the Constitution served and delegated powcis ! All that is
■ . J T 1 . n n «v'Antmn •Tin I Vicn nfA. noAneakri* ta ilY.t.. • _ *,L , l, ninrafltlC
rants of
! State
citizens claiming lauds under ; ho vested in Congress, in addition to those
different States; and between n vested by the Articles ot Confederation,
. __ a citizen thereof, and foreign continues: “Provided that ail presen
The Senate having under consideration i States, citizens or subjects; but no State i inents, fines, forfeitures and penalties to
“A Bill to organize the Supreme Court of j shall he sued by a citizen or subject of a be incurred for contravening y ut 'h
rules and regulations, shall be ar.judge'u oy
ihe common law judiciatories ot the State,
to the true
organize tne »uj
the Confederate States,” with a pendin
amendment to repeal the loth nud Pith
sections of an
cial Courts of
America,” approved March 1(>, 1861—
subject
foreign State.
In all cases affecting ambassadors,
” , ,. . , , the public ministers and consuls, and tliose^iu wliicli any offence, contr aiv to the lue p an v,.t
act “to establish tl,e Jlltu i , v hi c h a State shall bo a party, the Su- intent and meaning of such regulations., ‘All
f the Confederate States ot , ireincCourt slia]1 bavc appellate jurisdic- shall have been committed or perpetrated. ; trary jo
jroved March Id, 1801— { tion, both as to law and fact, under such with liberty of commencing, m the first iu-
Mr. Johnson said : Mr. President, it is j regulations as Congress may, by law, have stance, all suits and piosecutions, or t.i.it
with relucrance that I participate in the | directed.” purpose, in the supeuor onniu.n -a
debate, which has, for several da vs, enga- i No*', sir, it is upon these clauses that I dietary in such btnte, su ijc<■ , tun.m ,
rely, to show not only that the power has for the <<
not been granted, but that it is prohibited. fm-t >
enga
ged the Senate—reluctantly, because lam
indisposed, exceedingly feeble in health,
and for the additional icason, that I can
not hope to.throw any light upon a subject j clauses correctly, it is necessary to refer to
which has-been sofullv discussed, not onlv i the 1st section, article 3<i, which is as lol-
adopted by the Convention, and then pro-
v<a«d, that
“ To render these prohibitions effectual,
the Legislature of the United States shall
have the power to revise the laws of the
several States that may be supposed to in
fringe. the powers exclusively delegated by
this Constitution to Congress, and to nega
tive and annul such as do.” (Madison 1 a-
pers, vol. 2. p. 745:)
The 10th clause of General Hamilton’s
plan was as follows:
" laws of the particular States, con-
the Constitution or laws of the.Uni-
tlie lirst in- ; ted States, to he utterly void ; and the bet-
for that | ter to prevent such laws being passed, the
Governor or President of each State shall
be appointed by the Genera! Government,
and shall have a negative upon the laws
about to be passed, of which he
ernor or President. (Madison ’
by those Senators who have ptcceded me,
but by the ablest statesmen which our 1
country has produced. Indeed, 1 would I
not ask the indulgence of the. Senate, if it
was not my misfortune to differ from my
honorable colleague (Mr. Hill).in relation
to the pending question. Jf we harmoui- !
zed, the voice of one would Lc properly ,
taken as the voice of Georgia. As we dif- :
fer, however, it is perhaps proper that our j
Stale should he heard through both her
Senators on this floor. The question ari- j
ses on a motion to repeal the 45th and 46th \
sections oi an act “to establish the Judicial
Courts ot the Confederate States of Ameri- '
ca,” passed by the Provisional Congress j
and approved March 16th, 1861. That i
portion of these sections which gives rise to ;
the present discussion, is as follows : 'J be .
45th section gives an appeal to the 8u- j
preme Court of the Confederate States from !
••a final judgment or decree iu any suit, in '
the highest courts of law or equity of
orreciitm of all errors, both
find fact,in rendering judgment, to an appeal
In order, however, to construe these two \-to (he judiciary of the l mtid States, (Uadi
son l’n/nrs. rot. 3. v. 864., M llbout pans- j 2, p- 892.) . , ,
ing to trace the action of the Convention | All these propositions were zealously ad-
thiougli all the various stages of delibera
tion upon the subject, it issuiiicient for my
puipose, that the propositionijjAsnot adopt
ed, and that nothing like it {HP’ lj e found
in the Constitution. jjF
In reply to this, it may be said, that this
necesshtjt,io clothe it with such gigantic
power U for Congress to pass an act for the
enforcement of any laws complained of.and
so frame it as either to take from the State
courts all jurisdiction or'confer upon the
Supreme court appellate jurisdiction, from
I hose courts, of all questions aiming under
such act, and authorize the President to en-
foice its dual judgments by the employ*
ment of the army and navy of the Confed
eracy.
It the history of the past did not furnish
an illustration of what 1 have said, I might
have spoken of these foiebodings in the
language of conjecture. I refer to the act
of the Congress of the United Sta'es of the
3d of March, 1833, known as the “ 1‘orce
Bill.” it was intended to enforce the col
fet» he bad been in error. So it may be with thrsr I latest from the United States
and other distinguished names that are to _ .. e v r, .
sustain tb*w.ectioDR of your judiciary met There-1 Failure of the \azoo Expedition—The
fore, I attach very little importance to tlu ir opin-
ione. I ask the Senator trom Miaaianppi- (Mr.
Phelan,J to give me the reasons; give me tlie con
stitutioual authority on which you predicate your
action : show me i lie lex. tcripta in the Gonstitu
tion, which authoiia/BS you to ctoih* the ..uureme
court of the Confe derate States with appel ate pow
er over the highest State courts, aud 1 will go with
y °Now, Mr. President, having shown, as I think
the entire a!«ence of any express delegaliou ol
cower to center this appellate jurisdiction upon
ihe Supreme court: that, by the Constitution, the
whole judiciary power of the Confederate slaps
it lodged iu the Supreme court and such Internr
conrta as Congress may, from time to time, orua n
and establish ; that the mafidate, that it sha.l be
thns lodged, is equivalent to a prohibition against
its btiug vested in any other way ; that the propo
sition was made in the Convention of 1,-7, and
. not adopted ; that tlie power claimed is contrary
of! to the whole theory of our governwntal system, as
lows
“ Tho .ludici.il power of the Confeder
ate States shall be vested in one Supreme
Court and in such Inferior Courts as tlie
Congress may, from time to time, ordain
and establish. The judges, both ot the
Supreme at
their offices during good behavior, Arc.”
An analysis of those quotations from the
Constitution, gives the following as their
true meaning :
1. That the Supreme Court and such In
ferior Courts as Congress may, from time
to time, ordain and establish, constitute the
entire judicial machinery of the Confede
rate States—its entire judiciary depart
ment. The State Courts form no part of it.
2. That tho Supremo Court is the head,
and the Inferior Comts, directed to bo “or
dained and established.” are subordinate
parts of the system of the Confederate ju
diciary.
3. That the first—that is, tlie head—has
vacated by some of the ablest
tluential members of the convent
desired a strong cential government
Fight at Somerset, Ky — Burnside turns
up in a Sew Place.—Anticipated Sue-
cess at Charleston—Rhode Island Elec
tion—Advance in gold and Colton.
Richmond, April g.
The Examiner has Northern dates'of
the 2d inst.
A dispatch dated Cairo, April 1st, sa .. s
•Sherman's expedition to the Upper Yazoo
has returned without accomplishing j[ S
object.
Louisville, April 1.
A dispatch from Somerset says that
Gen. Gilmore’s forces attacked the rebels
under Program in a strong position near
Somerset yesterday. We fought them
five or six hours and whipped them badly.
Onr loss not exceeded thirty—that of the
is now
tli.it Bum.
irginia, and
are ere
Federal, hut national, in
But they were all rejeefei
its character
What are we
not ! revenue laws. It deprived .the State courts
irre.-istible.
of all jurisdiction to redress injuries, on ac
count of any act done, under any of the
It denied
the
to learn from their rejection? Surely that States, iu relation to revenue
- — . 1 ' -I'nitur,.* I earli State Government, in its appropriate the writ of replevin of property, in
“ d Inr ° n0r CWUr ‘ S P,al 101 rC! *° amreSmd'lhelibcrty’ofcominen- sphere, was designed to be independent of! hands of any person, «^**r ‘hejrevenue
in the first instance in the State Courts, all control and supervision by the Gen-ral j awe. Where suits or prosecution might
5cc.,
cing
'l’liis is tine : but it is also true, that, to .... .
the extent of the questions enumerated, it j ment—legislative, executive and judicial
did attempt to clothe the Judiciary ot the
United States with appellate powers over
the State tribunals. Jt was not adopted.
But to understand tlie full force ot this
proposition of Mr. Patterson—how com
pletely he designed to subordinate the ju
diciary of tho several State:—it is neces-
«arv, in connection with his third, to exam
ine'his fifth resolution. Ti e two contain
all ho proposed, in reference to the judicia
ry. The third is as follows:
That a Federal judiciary be establish
Government ; that each co-ordinate depart- j be commenced in a State court against any
— ^officer of the United States, or otberper-
of the one, to be equal of the corresponding j sou, for any net done under the revenue
co-ordinate department of tho other, with- j laws, it authorized the suit to be removed
in its constitutional limits. to the Circuit court of the United States,
Such is the relation between the Con against tho decision or order of tho State
federate, and the Government of the sever- court*. If any person was in custody or
ennuetits, tlip conclusion 1* ....
t5tli and 46th sretinna of yonr judiciary act ai
own is j troops can bn landed, and the city reached
i without assaulting Forts Sumpter and
Moultrie.
al States, established by tlie theory ot our
system, as defined and described in tlie
Constitution, and from a careful review ot
tho history of its formation. Then, the
question again recurs, if the judiciary de
partment of tho several State Governments
is supreme iu its juiisdiction over the re
State in which a decision in the suit could ‘ original jurisdiction, in all cases affecting
r prison, under uiesiio procoas from a State
court, it authorized the A/arshal to bring
him before the Circuit Court upon habeas
corpus, that he might he released. It dis
pensed with copies of records, when needed
in the courts of the Luited States, but re
fused to be furnished by the Slate courts.
f the features o"
ambassadors, other public ministers and
consuls, and those in which a State shall
be a party, and appellate jurisdiction in all
other eases enumerated. Appellate from
what? Of course from those inferior tri-
ordained and established by
Congress,” as constituting the subordinate
parts ot the system. Were the highest
Courts of tho several States, “ordained
and established” by Congress ? Uo they
he had, where is drawn in question the. va
lidity of a treaty, or statute of. or an au
thority exercised under tho Confederate
States.”
“ Or where is drawn in question the va
lidity of a statute of, or an authority cxer- hunals,
cised under any State, on the ground of
their being repugnant to the Constitution,
treaties, or lawsof tlie federate States;
“ Or w here is drawn in question
struction of any clause of the Constitution,
of a treaty, or statute, or commission held
under the Confederate States.”
- _ The 46th section provides that “ all :
judgment.», orders a„«J decrees made by j-
any State Court, since the date of tho ec- j would.
cession of such State, upon any subject or j I be provision of the Constitution which &c.”
matter, which, before such secession, was j declares that the judicial power “shall be
vested in one. Supreme Court, and such In
fer
time
dato:
al
“ That a Federal judiciarv be establish- is supreme iu its junsciiction over me ■« useu iu ue .uri.iM.euuj —
ed toConsist ol a buCeme T rihunnl, the. j served powcr-absolntely independent of | These sir. are bat a few ot the features of
Judges of wli’ch to he appointed by the ! all contiol or supervision by.tlie Confede- j tho “ I orte Bill, w hich absolutely de
Executive, audio hold their offices during | rate Judiciary-how can wake ! S-ded and ^vert^dtUe b-S;^t court
the former subordinate by its adjudications
.. • i rpsort in ! cisions of tho Supreme Court of the Con-j military and naval force at the command of
h W,y ,or foJomt. Slate,, a, tb. latte, ha, to reverse | the l'resi.len. to enforce its decision,. Who
I ; ! those of the former. If is a. competent for | shall that what has been don. in tho
'Lite same paper-says the Administration
confidently anticipate news ot an impor-
itTs the doctrftie of liie Jrtfersonian school that j tant snccess by the fleet in the rear of
doubtful powers should not be exercisea by Co..j i Charleston, arrangements having been
areas. 1* not this to say the le»st, a doubtmi j per{ecte d f„ r the commencement of the
power! It has divided the opinions 0 t the ablest K (ftck on the 27th. If the batteries at
Zs. side equally hou | Stono can be taken, it is believed Federal
est in tlu>ir Tiews. Who will say that a power w
clear and unquestionable in the lace of eucIi ot
deuce to the contrary ? Then, for this reason, i-
“mTmLKu“'.b. ,ov.iri(nt, of 1 The BepuMicn Unionists h.v.el,r, eJ
the State* We maintain that each State has the their candidate lor Governor in Rhode
right of seif-government—that each has the right j j slan ^ ], y B largo majoiity. They have
lo judge for itself, ai well of infractions of t ie on ] ar , rp iua j or ity ill the Legislature.
Ctrtirn.1.r«1* iiS Me'yt war | The Boston Herald says Burnside with
with this doctrine, «ind «ro based on a pniicij.* t [u^ comnicllH’y tins bocii assigned the de-
which wpuld authorize Congress to ertet the Mi- I p nr t llien t of Kentucky, to support llosen-
premo court .uto an umpire between ««jo fvvera. j un( l er the idea that a formidable
States and the Confedt-rale Sir.tis. l.iaceu ,
5 ... 1 invasion of Kentucky is at band.
Gold advanced in New Y'ork, on the 2d,
r, • • ;„ip i to 15S 5-S.
enforce ita dreisions bj’military power. _ is" J j advanced nearly 20 cents pet
one ot the form* ot coerciug the Sute* .nto ooeu. . . ~ . ;.i
euee to Cougreas, however unwarrantable tbeir en- j pound, wita salts at 74, with an upward
actinent* We war against it—we battle, for State ; tendency.
sovereignty. Tbia is the very gist of the pending ;
revolution! But what will victory be worth, if, at
Inst, vre leave the State*, through ihe arm of Us ju |
diciarv, jrrostrate at the feet of Confederate usur
paiieii ' Let ns ern»e this blemish from our stat-
ute hook, whilst by blood and death, wo vindicate ,
State stivereignty upon the battle-field. \\ e can I
acronrplish the one here, in peace, by the stroke ol
a pen. For the other, the resolve 11^00 victory an j
iuiates onr armir* ; it meets a universal response
have teen that Congress, under the old fmvern-
ment. did carry it to that extent, by ihe force dm
of 1-33, and clothe the Pre.-ident with authority to
to authorize the one, j United States may not be repeated, at j from ie Potomac to the Rio Grande, and it is eeh-
gress to authorize the other. J some future day,in the Confederate States! j oed upou every wind of , ** aT ”6 2”.g nom^o
from this conclusion,but ; It is our duty to preserve the entire and | of«
that the hi:
the relation of
, . . , .... . commerce and manufactures
tighest State j perfect independence and supremacy 01 the j nn!) | 01ir j,dependence shall have been achieved,
f inferior, to j State courts within the sphere of the re- Our argument is the thunder of artillery and the
w ithin the jurisdiction of the Courts of the
Confederate States, shall have the force
and effect of judgments, orders and decrees
of the Courts herein e.stublished, with the
privilege of either party to appeal or sue
out a writ of error.”
The object of the two sections is to con
fer nppellatejurisdiction upon the Supreme
Court of the Confederate States over the
highest State tribunals of the respective
States. I fully agree with the Senator
from Mississippi, (Mr. Phelan,) who ad
dressed the Senate on yesterday, as to
what is the true question presented for our
consideration. The question is . Has Con
gress the Constitutional power to pass such
an act 1 Or, to be more explicit, is it com
petent for Congress to subject the decis
ions and judgments of the highest State
Courts to revisal and reveisal, by the Su
preme ^:>urt of t ;e Confederate States?
To authorise an appeal from the former to
the latter for that purpose? Such are the
object and operation of the two sections,
which it is now sought to repeal. I deny
any such power in Congress, and, there
fore, 1 shall vote in favor of the proposition
to repeal.
The Senator from Mississippi (M. Phe
lan), mi yesterday, seemed to complain,
in the outset of his remarks—and indeed
his whole speech was spiced over with such
complaint—tint those who favored the mo
tion to repeal,had no argument, that be had
listened, in vain, to hear an argument in
favor cf the position which we occupy.
Mr. Phelan—Oh, no.
Mr. Johnson—I so understood the Sena
tor.
Mr. Phelan—I spoke with reference to
the charges which linked myself and eth
ers with the old Federal pa*ty, not that an
argument had not been introduced 011 the
question before the Senate.
Mr. Joh nson—Well, sir, at all events,
the remark I am about to make is as appli
cable as if I had correctly understood the
Senator, It isthis: that those who main
tain the constitutionality of these sections
hold the affirmative, and the onus pi obo mi t
is upon them. It is for them to show, af
firmatively, that Congress is clothed with
tha authority which they claim; otherwise,
without a syllable of objection from this
side the authority docs not exist. It. is
unnecessary until they have made out a
case, predica'od upon the Constitution, for
ns to offer argumeut. Taking that view of
the question, the first tLing that strikes
. the mind is the entire absence of any ex
press delegation of power in the Constitu
tion. I repea^, those who hold the affirm
ative are hound to produce the authority.
For “ the powers not detegrted to the Con
federate states by tlie Constitution, nor
prohibited by it to tlie States, are reserved
to the States respectively, or the people
thereof.” (Art 6, clause Gth.) 1 chal
lenge the production of a single word in
the Constitution, which direct!}- and in
term3 gives the Supreme Court of the Con
federate States appellate power over the
highest State tribunals of the several
States.
Will you throw yourselves upon too im
plied powers ! The right of Congress
exercise implied powers is expressed in the itori ?
1 Sth clause, of the Stli section, of the 1st
Article of the Constitution ; “ To make all
laws which shall he necessary and proper
for carrying into execution the foregoing
powers vested by this'Constitution in the
Government of the Confederate States, or
in any department or officer thereof.”
Now what power is delegated to Congress,
touching the Judiciary, which cannot be
fully and perfectly executed, without the
right of appeal from the highest State
Courts to the Supreme Court of the Con
federate States? None can be conceived.
The imagination, in its utmost fertility,
would fail to invent a case req uiring the use
of this incidental or auxiliary power. It j
cannot be invoked, except in aid of a power
expressly delegated. Towers not delega
ted cauuot be taken by implication.
The only authority claimed with any ap
pearance of plausibility, is found in the
first and second clauses of Section 2, Arti
cle 3d, of the Constitution. They are as
follows:
“ 1. The Judicial power shall extend to
All cases arising under this Constitution,
the laws of the Confederate States, and
treaties made or which shall be made under
their authority ; to all cases affecting am
bassadors. other public ministers and con*
suls; to all cases of admirality and mari-
(Madison Papers, vol. 2. p.
This gives another class of cases,in which j Courts
tlm Vtiflnr.'il imliciarv wjis Tirol
Supreme C.r.r. of ,h. ConMeru.e | serve.l power, W. .hmU now in tW j
ancy of our Government, settle the que»- j goverci _ llty from tbeehackles of central power.
*es, as if they were the “ Infetior 1 infancy
ises.in which j U°i*rT» ». to be “ ordained and es- ; tion forever, that Congress has no consti-;
osed to have 1 tabiishcd by Congieo»,-* J _LT m,..„ a i lft , vri i 1 nnthnritv to vest the.SuDreme
ignty
■lan n nnnn the ConHaclors.
re(
Coufeder
Supreme Court, aud in such Inferior j ordinate tribunals. Of course, therefoie,
Courts as Congress may, from time to time. : when he confers upon it appellate power,
ordain aud establish,” is equal to a decla- lie intended appellate jurisdiction over t e
ration, that the judicial power shall, be ; State Courts. But nothing like his pi opo-
vested in no other way. It is tantamount ! sition was finally adopted by tlie Coin on
to a prohibition to vest in any but one Su- ; tion.
preme Court, and in such Inferior Courts, ; Mr. President, I advance a step further,
as Congress may, from time to time, ordain | and maintain that the exercise of such
and establish ; not such as the St-ates may
ordain and establish.
Sir, the Senator from Mississippi (Mr
Phelan) asked yesterday, where should we
go to obtain knowledge of the powers of
the Supreme Court of the Confederate
States ? Toillustrate his question, he quo
ted from the Constitution that the Execu
tive power shall be vested in the President,
power is utterly incompatible with the the
ory of our government. I shall not stop
to prove the sovereignty ot the States auu
that our Constitution is a compact between
sovereign States, designed to define the
powers of the Confederate Government.ami
to constrain its action within its appropri
ate sphere. These propositions will not be
denied. Nor shall I consume time by
II • «/ Jt'r ” uliaii UU • COl LVl IU tUv 1 lLOIU\.lll| _ « , I p
and, said lie, the President never could j showing that the several States 0 . ie on
know what his powers were by such a sim- j federacy, within the limits o t ,el JJ 1 ^. fce1 '
pic and naked declaration of power as that? I e d powers, are not only untepenocn o 1 ac i
And so it was with the judiciary depart- 1 other, but also of the Confederate Govern
ment. He said you could never know ] ment. It is sufficient for my puipose o
what its powers were by simply referring ’ *d'o w > by quotations from'-’" 0 .. ’
to that portion tho CWtitotim, wirioh i these »eoretic doctrines are hilly re Q -
describes its tribunals ; nor must you go to ‘ ognised, and that the governmqn 0 ie
- J ! Confederate States and that of each of the
where these powers are to be executed to
determine them. I ask, where then must 1 States are co-equal that is tosaj , supreme
we go ? That Senator ought to remember within the limits of its appiopiiaie sp icre ,
♦ l, n . *1,0 onoctloi. G *ho nowor to fhe one has no right to trespass upon tne
resps
province of tho other. ’I ouching the su
premacy of the Confederate Government,
the 3d clause of section 1st, article Gth,de
ed ares that
•• This Constitution and the laws ot the
Confederate States which shall be made in
pursuance thereof, and all treaties made or
. which shall be made, under authority ot
1 the Confederate States, shall be the su
preme law of the land, and the Judges in
every State shall be. bound thereby, any
thing in the Constitution or laws of any
i State, to the contrary notwithstanding.”
In relation to the supremacy of tlie sev
eral States over the reserved powers, the
5th atid Gth clauses of article Gth, section
1st, declares as follows :
“ 5. The enumeration, in the Coustilu-
ry of the several States into that of the j t * on ' 1certa ‘ n ,10 ^ ^ c on
Confederate States? The State Courts\l' ra f i0 or d.sparage o.hes retained
established by the respective State ’ b 7 ‘he people of the several States.
hv ! ” 1 he powers not delegated to the
that the question is, where is the power to
he exercised ? That is what we are search
ing for, to ascertain if any part of the judi
ciary department of the Confederate States
is to be vested, under the Constitution, in
the. highest State tribunals ? He says tho
judicial power must be exercised partly in
the highest State Courts. 1 say no. I do
not go there as one of the places where the
Constitution' has lodged the judical power,
because Congress lias never ordained and
established them as “ Inferior Courts” in
the sense of the Constitution.
Now. sir, a word as to the light of Con
gress to constitute the highest State Courts
a part of the Confederate judiciary. It
has not attempted to do so directly. But
what warrant would it have, in she Consti
tution to do so ? Can it merge the judicin-
clothe the Confederate Government indi
rectly with the power to supervise such
acts of the Legislatures of the several
States as may involve questions over which
it is proposed to give the Supreme Court
appellate jurisdiction. The highest State
court may decide an act of the Legislature
constitutional, thereby defeating the right
of the party setting up the contrary: But
the sections of our judiciary act under con
sideration make it competent for the Su
preme Court of the Confederate States to
reverse the judgment and pronounce the
State act unconstitutional, thus annulling
the act of tha State Legislature. M hat is
the difference betweeu this mode of defeat
ing legisL.tio.i and that of allowing Con
gress to exeicise a vote 1 None whatever,
except that one accomplishes the object in
directly and the other directly. The Su
preme Court is the creature of Congress—
its instrument to represent and preserve the
dtlcjstcti n«w«ra. But we have seen tluit
the Convention of 1787 rejected the prop
ositions ofGoveruor Randolph, Mr. Pinck
ney and General Hamilton, to confer on
Congress the power to do the same thing
directly. Shall we permit it to be done in
directly, through the Supreme Court, the
instrument of Congress ? It follows, also,
that the Executive department, as well as
the judicial and legislative, of the several
State governments, is,pro tanto, reduced to
a condition of subordination, llis power to
enforce the judgment of the highest court
ol his own State is destroyed, and he is
confronted with the overruling decree of
the Supreme court of the Confederate
ferently, and that parties will never know
what tlie law is, unless it he decided, in the
last resort, by a tribunal of universal au-.
thority, over*all the States. I would not
undervalue tlie uniformity of judicial de
cisions. But the independence and su
premacy of the State judiciaries, within the
scope ot the reserved powers, is infinitely
more important. Upon its preservation
may depend, as has been shown, the exis
tence and integrity of our whole system ot
government.
Let the jurisdiction of the Confederate
Judiciary be extended, until it shall be
commensurate with tho delegated powers
of the Government, and preserve uniformi
ty within that limit: then it will fully per
form the end for which it was created.
The conflict of decisions in State courts
would work but little mischief. The plain
tiff always has tho right to select his tribu
nal, and having selected, he ought to abide
its decision and be content. Nor has the
defendant a right to complain, if the decis
ion he agaiust him. He is voluntarily a
citizen or resident of the State, in which
the suit is brought—if in a State court—
which fact gives the jurisdiction ; and like
all men, in all countries, he is bound to
yield to the laws and adjudications of the
place wherein he casts his lot
Much stress is laid upon the fact that the
two sections, under consideration,originally
emanated from the first Congress, alter the
Convention of 1787, many of whose mem
bers were also members of the Convention
that framed the Constitution of the United
States. General Hamilton was in the
States, backed np by the army, navy, and Cabinet, and Mr. A/adissn was in th
Legislatures aud the Judges are chosen by
election or appointment, under State au
thority. Is
clause, 2d section, of the 2d Article of the
pow
Confederate States by the Constitution,nor
that compatible with'the 2d i Prohibited by it to the States are reserved
action, of the 2d Article of the j to the f , t , atcs » respectively, or to the people
Constitution, which declares,that the Pres- ; G ,ere0 “
militia for its execution. Thus, the sever
al State governments, in ail their depart
ments, to the extent of the appellate juris
House of Representatives. It is confident
ly asked, whether these men, fresh from
the Convention, did not understand the
the charges it j
“Suppose a government contractor be
allowed 52,50 for making a suit ot clothes,
an d he puts out the work to poor women,
at SI per suit; thus making by way of a
slant, the neat little profit of 81.50 on
every suit of clothes manufactured.—
Would this be right l Suppose the same
thing is true of soldiers caps, drawers,
shirts and socks ; and then suppose some
eight or nine hundred of each are made up
every week; is it not plain that the con
tractor is driving a heavy business, and is ;
it not natural that ho should grow rich J
and begin to spread himself out like a
green bay tree ?
Again the “Sun” says : j
“Only think of it. A sleek speculator |
growing rich by the labor of the poor j
half famished needle woman, who gave up i
her husband a sacrifice on the altar of our j
country ! A man who forcibly wrests |
from the bands of starving children that ;
which is to make him rich ! A man who |
will deliberately rob tlie widow and or-
| Special to the Jack3on Appeal.]
Northern Intelligence.
Important Rumors from Kentucky.—Cm-
ciiiati and Louisville Frightened.
Panola, April 2.
I have the Chicago Times of the 27tli
ult.
A Cincinnati dispatch, dated the 2Gth,
says that Gen. Breckinridge, with a large
force, was within ten miles of Lexington,
Kv., anil that lie had scouts scouring
Woodford, Fayette, and other conntres,
impressing negroes, and arming them with
picks and shovels to erect defences at
Lexington, which he proposed to take
The same report has it
the Keutuek_v
cars on the
Railroad,
tamly at Harrons-
^exington, on
at Winchester
tlie morning of the 26tli. Whether he
would move ®n Lexington or Paris was
not known, but the supposition was he
would reinforce Breckinridge at Lexing
ton, wlicie the Federal forces^ was concen
trating.
The Confederates had got over all tlie
roads, and had established their picket
linos.
Humphrey Marshall’s advance had
reached Mount Sterling.
The same dispatch says : “Nothing*
definitely known of Stonewall Jackson,
except that he is advancing. Refugee;
by hundreds are arriving from central
Kentucky, and valuables of every descrip
tion are being brought Nonthward. Gen.
gone to Lexington, which
fortified. Geu. Burnside is
in this city, confined to his bed by sick
ness. The trains from Nicholasville to
Lexington have stopped running. Serious
.-.prehensions are entertained that two-
thirds of the Virginia Confederate army
has come out to reinforce Johnston, and
Wright has
place xviil be
pliau of their daily bread, that lie may j ags j st ; n t ] )e invasion of Kentucky. The
add to his opulence ! A man who profess- i
es not only to be a patriot, but also a ;
Christian, who wouly deliberately drive the j
poor sewing woman to choose between !
a life of shame or an ignominious death, j
by starvation ! How dare such a monster i
look his fellow-man in the face without
cowering in ver^ r shame ? The milder :
forms ofvilliany, such as. treachery and ;
counterfeiting sinks into insignificance
when compared with such enoimities.
rength of the invaders is estimated at
50,000, which is to be increased by .‘iO.OOu
Kentucky volunteers and conscripts.—
This is no exaggeration, as it comes
through sources entirely reliable. A large
number of troops are being fed by the
citizens to-day, and provided with ten
days cooked rations.”
A Northern despatch reports consider-
i able skirmishing between the Federal
cavalry and the Confederate advance
Don’t this apply to other places than • south of tlie Kentucky river, on yester-
diction of the Supreme court over their j Constitution which they assisted to form /
highest courts, are reduced to a subordinate , Whether they would have sanctioned the
condition. And if you admit the principle sections under consideration, if they had
w here will its application end ? Not being
countenanced by the Constitution, the Con
stitution fixes no limit. Tho Constitution
gives the Supreme couftappellate jurisdic
tion iu almost every conceivable question,
civil and criminal, that can arise in a court
of law or equity, except in the enumerated
cases, wherein it confers original jurisdic
tion. If Congress has authority to confer
on it a reviewing and reversing power,over
* ... , „ r , , the highest State courts, upon a portion of
idem “ shall appoint the Judges of the Su- j Hence, the Confederate and the seveial, tJje8e mimerous questions, why may it not
preme Court and all other officers ofthej^ ta t e Governments, being each supreme
Confederate States, whose appointments . within its appropriate sphere,are co-equals,
are not herein otherwise provided for, and j The one cannot trespass upon the dominion
which shall be established by law,” Ac. ? | of the other. To do so is to destroytlicir
Suppose Congress should, in terms, declare j co-equality and reduce the one lntiingod
the .State Courts a part of the Confederate i upon to the condition of subordination to
• - - - ■* Ihe powers of both—that of
" ~overn-
dinate
legislative, executive and ju-
tlie State Courts a part ot the Confederate i upon to me condition «u -
Judiciary—its Inferior Courts—would it ; the other. Ihe powers ot both -that <
not he the duty of the President, under j the Confederate and of each State Goven
this provision of the Constitution, to ap- j ment—are distributed into tike co-ordinat
Constitution, to ap-
M’hat then becomes ' departments-
prov
point their Judges ? . w
of State authority ? Can we fail to see the | diciul—^and %ince the Goyertmien.s t ■ein-
irrecoticilable conflict to which it would ! selves are' co equal, it follows tliat t mil
Si
.. _ir, the highest State Courts are | several co-ordinate departments are also
either a part of the Confederate Judicialy ! that is, each is independent of the r thei
or they ai» no t. If they arc, it is incum- ! and supreme within its appropriate sphere ;
bent on the «tlier side to show it, and to ; each State judiciary is the co-equal of the
show- tho authority by which they- are > Confederate judiciary, and neither can in-
made so. I have shown that they are not, tert'ere with the appropriate jurisdiction of
j and that Congress has no power to make the oilier.
! them such, if they are not, then the po- It is interesting in this connection to
! sition of Senators, on ihe otlmr side, in- note how cautious was the Convention of
volves the absurdity of contending for a re- : 17S7, in guarding the supremacy and inde-
vising and reversing power, in the Supreme pendence of tlie several •States, w ithin the
Court, over tribunals which form no part limits of the reserved powers, by the rejec-
of the Judiciary departmeat ofthe Confed- * tion of every proposition for their snbordi-
erate States. | nation t.v Federal control or supervision.
Sir, it is true that we are discussing the j On the 29<h of May, Governor Randolph
power of Congress, under the Confederate ! presented the outlines of a plan ot govoru-
Oonstitution, to confer upon the Supreme ! mcnt ‘ ,n a 6er,e « ot resoliRions, of. which
Court appellate jurisdiction over the high- j ?tl. proposed^ empower the national
est State courts, in tile cases enumerated ‘ Legislature
iu tlie 45th and 46th sections, which 1 quo
ted in the beginning of my remarks. But,
as the language of our Constitution on this ! the national legislature, the articles of uq-
point is nearly identical with that *f the ! * on > or an Y treaty subsisting under the au-
Constitution ofthe United States, it is fair j thority of the Union ; and to call forth the
to presume that it was intended to be used i force of the Union against any member of
in tlie same sense m both instruments.
Hence, it is legitimate to refer to the pro
ceedings ofthe Convention of 1787, to as
certain wlieth^tbe framers of the Consti
tution of the United States designed to
clotiio the Supreme Court with appellate
powers over the courts of tbc several States.
do so in reference to every question? If
it can declare the State courts inferior com ts,
in tlie sense ot the Constitution, fur
certain questions, why not for nil ques
tions ? What is to prevent Congress
from treating tlie highest State courts as a
portion of the judiciary department of the
Confederate States Government / There
is nothing to prevent such an absorption of
the State courts. It is usurpation from the
beginning—outside of, and unwarranted by
the Constitution. It cau have no limit,but
the irresponsible discretion of Congress,
which, at the bidding, of party, or lust for
power, or yearnings for a strong govern
ment may, at some future day, undermine
our system and bring the State governments
to the footstool of centralism. It may
never be pushed to that extent, but the
fact that it may, and thus the reserved be
placed at tlie mercy of the delegated pow
ers, ought to awaken our liveliest appre
hension.
The doctrine of State sovereignty is dear
to the Confederate Sfates, hallowed by the
sanction of the most illustrious names that
adorn the republican school*ofT798-9. In
all cases ot compact among parties having
no common arbiter, “ each party has an
equal right to judge for itself, as well (fin-
, , , fractions as of the mode and measure of re-
To negative all laws passed by the „ For ‘ the priuc i p | e that underlies
this doctrine we are now engaged in a
bloody war, at the cost of many hundred
millions of treasure and hundreds of thou
sands of more precious lives. We fight for
State sovereignty. But how fruitless will
life the struggle if we yield, at last, to a
principle which cannot be limited, but
which, if carried to the verge of its capaci
ty for extension, swallows up the State gov
ernments and erects the Snpremecourt into
an overshadowing umpire to determine, m
the last resort, all conflicts between there-
eral States, contravening, in the opinion of
the Union failing to fulfill its duty under
the articles thereof. (Madison Tapers,vol.
2, p. 732 ) _
On tho same day, Mr. Charles Pinckney
presented his plan of a Constitution. Ihe
eleventh article enumerates the prohibitions
upon the States, corresponding very nearly
they
deemed them unconstitutional ? This ar
gument has always been estimated far
above its intrinsic value. The Constitu
tion, like all other instruments, is to be con
strued by its own language, illustrated by
cotemporancoits history and by the journ
als of the Convention that formed it; and
I have shown that the 45th and 46th sec
tions of our judiciary act do not hear the
test of the light from these sources.
Besides, it is well known, that, in the Convet-
tion. there was an array uf distinguished men—>
such as Hamilton, Pinckney, Patterson. Madison
and Randolph—who advoeaiod a government of
greater powers Mian the Constitution .which was
adopted confers upon it—a government clothed
with supervisory nulhuiity over the Governments
ofthe several States. Failing to accomplish their
purposes, in framing such a Constitution, it has
been supposed by many of our most sagacious
statesmen that, they, with motives entirely uprislit,
sought to engraft upon the Constitution, by con
struction, more power than the Convention ever
iuteuded to deiegate, and thus, indirectly, accoin
plish their ardent desire for a strong Government
1'hnt such is probably true, is perfectly compatible
with the nature uf tlie human mind, without the
slightest imputation upon tluir purity and patriot
ism Mr Hamilton being in the Cabinet, and Mr
MadiHun in the House of Representatives, when
the legislation which is under consideration was
tirstadopted.no doubt their influence was great,
and no one questions their devotion, to what they
conceived to ba tlie best interest of the country.
.Still they were but ni-n, liable to err, and from tlie
circumstances just mentioned, very likely to err
Bat we are at liberty, waen considering a great
Constitutional question, and called to decide upon
the solemnity of our official oaths, to differ from
these distinguished statesmen. For myself, 1 am
not miich inclined to rely upon the authority of il
lustrious names. I rely upon them, so far only as
their opinions are sustained by reason. One good
teason for in opinion is belter than a thousand opin
ions without reasou.
There is another objection, Mr. President, to
settling this question by the authority and potenct
of mines. It is a truth, and ono w hich I supp-se
we all have experienced in our owji history, that
men'* opinions change. You will scarcely find
any distinguished mau, who figured iu public life,
when these questions were agitated who has not
occupied both side*. They were doubtless honest,
at the lime. I impute dishonesty to none, aDd
least of all, to those distinguished sages of the past,
whose memories I reverence and whose glory 1
prize. Indeedjtheir honesty challenges my com
mendation in this, that they did change their opin
ions He is either a fool, or a knave, who never
changed an. opinion ; fer no man never yet lived
who was so infallible in his judgment, so powerful
and conclusive in the majesty of his intellect, that
he was not swerved by passion, education, prtju-
dice and aurroundingcircumstance*; and who did
not, when the beat of the bonr paaaed away, or a
a8 *P* r insight was obtained, and a more disinter-
sated view taken, under different conditions, con-
Columbus.
Rnsf in M'hrnt.
It has bren long known and the idea j
acted on among the Spanish agriculturists
in Texas and Mexico, that the rust in
wheat is produced by showers or heavy
dews followed by a hot sun, during that
period of vegetation when the wheat is in
the bloom And milk. The effect of the
sun upon the wet plant produces the rust.
To avoid this result, two men take a heavy
rope, say twenty or thirty feet long, or
longer, and walking at tliat distance apart
draw it over the wet grain, thereby shak
ing off’ the drops of rain or dew, and thus
prevent the usual effect of the sun upon
the plant.
After a heavy dew the rope should be
drawn over the wheat early in the morn
ing. Wheat planted on hills, or windy
positions, generally escapes rust; wlieu
in low flat grounds, where there is less
wind, the rust takes effect. Smut is pro
bably produced in the same manner.—
Tho people of the Cotton States should
notice this—Richm. Sentinel.
LATEST FROM CHARLESTON.
Th* Krsksk Orlninly Hsuk-Tbr Attnck
nut Rrsaaacd—Thr Ynnkrr Devil Caught.
day.
A dispatch, dated Louisville, March
2t3th, says skirmishing occurred near
j (Jump Dick Itobikson.
The Washington Express says tliat
egress or ingress through the lines at
that city, except to contrabands, is
prohibited. Deserters are not allowed
to pass until permission is obtained
from headquarters.
Ullman, brigadier general of the
negro troops, has been closeted with
Lincoln.
A dispatch from Nashville, dated
March 2oth, says the rebel cavalry
within four miles of the city to-day.
ready to lay on.
A Cairo dispatch, dated the 25th.
says an order lias been issued by the
Treasury Department, prohibiting
the shipment of goods South of this
point.
The gunboat Rattler had arrived up.
badly damaged by corning iu contact
with trees in going through Yazoo
pass. Ensign was wounded, and one
man of her crew killed, by the lire ol
the gueril as oil her trip.
The Xaltional theatre at Boston ha?
been burned.
The Cincinnati Commercial »f th p
Charleston, April 8th, 8 T. M,—All • V- n. ri.r
quiet thus far to-tlay. The pedxile and ^ sa }’ s nothing edltorial.l} a
troops are in high spirits at the result of j Kentucky affairs. Its Lexington ois
yesterday’s fight. The Keokuk is cer- j patch, dated the 2Gth, says the intad-
tainly sunk. The fighting was chiefly at j ing force is not over six thousand
a distance of 9G0 yards. The Monitors j strong, that they were moving to-
cannot pass Sumter without coming in 500 wa rd Richmond, and mainly mounted
5’ a , r .^ s ' . . . • The force was stated to be under P?
I he impression is very general that the , ,> . • • i not
S™™- General Breckinridge b »
enemy will renew the attack after jepairin
damages. Seven Monitors and the Ironsides
are still off the harbor.
LATER.
10 P. il/.—The lastest official intelli
gence from the bar states that only two
iron-elaffs have gone South, leaving seven
remaining, besides the Keokuk, which lies
sunk about one thousand yards from
Morris’ island beach.
The Yankee machine, called a “Devil,”
designed for the removal of torpedoes,
has floated ashore and fallen into our
h^uds.
All is quiet now. The enemy is con
stantly signaling, but no renewal of ike
attack is anticipated before to-morrow.—
The Yankees.bare been busy all day
repairing damages.
re
mit
believed to be in the State, though lib
son is. It was rumored that Jacobs am
Woolford’s cavalry had captured t«°
hundred Confederate prisoners. CluKe -'
guerillas still hover around Moun
©terling and two hundred ol his me“
have been captured since Sunday-
There is but little excitement l )ere j.
and no apprehensions for the safety ti
the city are entertained.
LATER.
The Commercial’s last dispatch sa} s -
A gentleman from Nicholasville sta
that the Federal forces are. on
south side of Kentucky river aga '
and there has been fighting a,) < *. •
Result unknown.