Below is the OCR text representation for this newspapers page.

The Weekly Constitutionalist. BY JAMES GARDNER SPEECH OF HON. HERSCHEL V. JOHNSON, OF GEORGIA, ON TKK SUPREME COURT BILL, IN TOR CONFEDERATE STATES SENATE, FRIDAY, FEBRUARY 6, 186$. The Senate haring under consideration “A Bill to o ionise tbe Supreme Court ot the Cwuieuerate S:-tes, * with a pending amendment to repeal the 45;h aad 46th sections of an -.ct **to establish the Judicial Cv»urts of the Confederate States ol Auier ca,’* approved March 16, 1361 Mr. Johnson said: Hr. Presidin', it is with re* inc acce tna» I participate in the w;.icb has, tor s.-veral days, engaged the Senate—reUtc taaiiy, because 1 am indisposed. exceedingly feeble in health, and for the u.dd/»on*l reanon, that I cannot hope to throw any light upon a subj ct witch *. as been so tuliv di*cussed, not only by those Senu’ors who have preceded nit, but by i&- ablest statesmen wr.icu our coumrr L.-.s produced, inked, Iw*u a no* as* the iu« uuigeuce o. tiie Senate, if it was not my #ii.*for* i tune 10 differ from my honorable colleague (Mr. j Kili •i » t\ .h ioD to the pnndinq question. It w< ! carrn >u zed, t«e voice or • a * would be properly ! l*k a us the voice oi Georgia. As we (litter, i however, it is pet Lops proper !h *t our Main f should be ce-ru- through b :h her .-enacts on i this fl-w»r. The quest mn atis-L Ol amotion to,’ lepe tl the 45tu aud 46: h svcn.-\- o an ae; “ o { estublsii he J U c at Cou.ir* ui ’.he Cantedcrule I , States of America," passed by the Provisional I C-M ; g’'cs:. «.c:i iipprov ci March* 16 h. 1361. That j por.l aot ;,.e*r i cieuv which gives ns: to the ) /< eat d:.s'ju:-si( n, l* as fnilovre : The 45rh fee j t tv: jivj aan app»ul to tbe Supreni Court of tu i nltd- futt S .toJlrom “it.fiuai j«dguieu; or < r . 1 cree :a ..ny huo, id the highest cun: *..« ol lav; r equ/y ol a S ate in wince i d.v. oou »n the auG eu * j be had, where is drawn in question the Vvi. iai yof ,i treatv, or > aiute of, *.: an authority ex.rcired uod-r the ( •cfe.n.’ruie n .L'.v” * Or wii-re * drawn in question fli validity of a*atme of or .iU atr.r.o tty exce? used under u n* I St a’**, on t % e ground o: t!: r beta;.* : tqAagnau* to j the Con-titut on, treaties, or laws ;• -ee Con fed- ‘ 6i a f e Sta i* s ; *or wiitie is drawn in quest '.., the enstrue* j ti *u •» any clause of tha Com-tituti:.:;, of a ttvaly, ! ors.atute, ' r commission held under the Costed* j era c St .:t* • ” '» be 16ta section provide that 44 a I judgments, | nrd-’Saad deCrCiS iiT.de by any State Court, , the dite of -he stC’.-ssu-n of**ch S'a’e, up ! t n any s. jj-ci o; matt- r, wb’ch, Och re such 1 " •-V.OI!, ..as wiihiu tin? jurisdiction of the ' • -~, ;| C l. ederate States, shad have the ’ ' •-'! •••»■* *il c* ot judgmeau, orders and d«:n.s < . itie Court* hurt u -t tbliahe i, with the pr:v.- • *-” o- p»rty t • appeal oi son f*u; u writ if 1 Iht: obj ci ol the l v*’o secti* ,s to confer ap" j A at' j'l.isd.ctim. up. p the Suprema Court of ! the G.intederai.? Slates lives lij • highest State ir.iu.ta s ot the respect ire StatrP. 1 fuliv agree witu the Senator fioui Mississippi, (Mr. Pnelan,) wbo uodrtssed too .Sti.u'c on jvs’.crday, as to wLiu - ;> the ir tie question jt .> ir.ed tor our con s den-iou. The question ts : Has Congress the Coui iinouai power to pai> sue 1 au a;»? Or, ; - be ’ftur.i expiic i, 1* it competent for Coagr ss s i.jfct the di-ciston* ana judgments .»t the State Couris to revisai and revhrs tl, by toe Supreme Court ot the Cunfede'ate Slut > i .O authorise au apjieai from former to the uder fur tbu. purpose? Such are the object uud openin'!c ot the two sections, which it is n.>v/ sought to repeal. I deny any such power in Cungre.'>. end, therefore, 1 ,h.i:; v .ie n favor ot tge pmpasi ion to repeal, * he djOuitor fraia.V p 1 V sll «uiy .TFe 31 •. a u —w, * a S —. ■. , ls - his remarks— and indeed his whole ppeech wan’ ’ spiced over with sweb complaint—iha; those who favored the motion to repeal ; had no argument that he had listened, in vain, to hear au argu tneni in favor <<f the pwiuon which we occupy. Mr Phelan—Oh, no. Mr. Johnson lso uadetstood ’he Senator. Mr. Pne'ai—l spoke wth rekr»n?e to the ctiarnes which linked nivreli and others with the <iu Federal parry, not that an argument had not ■ btvn intioduced * n the question be!- re me Sen* ‘ ate. Mr. Johnston—Weil, sir, at ait events, the res mars 1 am ab< ut to mike is as applicable us if 1 i hid correctly uudtrs’ood the Senator. It is ibis; that those wh-» maintain the * cossiiUitiona ny of ; these section-- hold 'he uflirmatire, and the >nut i • probat'di its upon them. It 1 tor them to show, i atfir rnativelv, tn.it t. uigiehs is c.oth* d with tbe . authority which they claim; otherwise without a ; sylUbie of ot jid :i from ’.hie side the authority j dots not exist, i. uuneccssary until tney have j ui4.de out a c as;*, predicated upon the C> nautu- j tion, lor us to‘off-1 tegument. Takiug tha*. view of the quegiion, th lira: thir.g ihats nkes the j ruiad i <L • vnt.re - j -ence o' auy txp e.-s ceiega- j non f power in ihe C #ns;itution. 1 repeat, those wb h«.:c the affi ma-ive are hound 1* produce ) the . u iii.i ity. For ‘ tae powers noi deii gated to * the Coafedrruifi States by the Cor-nriiiUion, n<*r ! p-.-..h • - J by it to the Slates, are 1 10 tbe ' S ites its*. t-vi.Vv.v, or the pe pie thereol.” (Art. 1 6, clause 6.ti.) 1 challenge the production of a t-irgie word in ine Coumuuuoo, which directly j on., .u terms gives the Supreme Court of the • Confederate State.- appelbtte power over thek gha tst State trit-uauls ot the several States. Wil: you throw jour.-Vives upon tbe implied powers? The r gut ot Congress to i-xercise ini -I,led powers lsexpiessed m the ISih clau •*, of j ihe 6th secuon. ot the lat Article of fheCbos i- j lotion: “To niake all laws which sh «li be iicces»i i eary aud proper for carrying into execution the j foiegoiug powtrs vested by this Constitution iu i the Government of the Confederate Siaiae, or in j any dep&nmenr or oJrcer thereof/’ Now what power m delegated to Congress, touching the Ju» ; g.ciary, which cannot be iuliyand pe'iectly exe« • cuied, w.tiwHit the right of appeal trom the j liigijrr.t Slate Courts t<i the Supreme Court «t [ ti.e C nfederate State*? None can be conceived, j Th* imagination, m its utmost fertility, would 1 laii to inveot a case requiring the u.-e of this : incidental or auxiliary power. Ii eanuot be in* vo«fed. except in aid ct a power expres-iiy dele* 1 gated Powers not delegated cancot be tteken j Ly implicafioD Toe only authority claimed with any appear- ! a-ce of plausibility, h found ic the htit and • Sec . d clauses of Section 2d, Article BJ, ot the i Cot: .um, n. They are as follow*; “1. the judtcuii powersball extend tcalleges ; arit.og under thin Constitution, the laws of the , Conti derate States, and tnaties made or which ; shall b'. made under their ucihonty; to all cases ; tfTcC mg ambassador's, other public in misters and consuls; t» ah ca»es of admiralty aud maritime jar!*dicuou ; to couiroverste* to which the Con* ; led-1 Sta as be a party ;to controversies be we n two t r more States; between aStaU-aud • h citizen ol another State, wheie th? S ale is j pli.tr.ff; between Cit r-ns claunrg lands under : g:.. diU’. ri-.nt S ate*; and between a State I w c z n ih*-;e>if, and foreign states, citizens or subjec s; but no State ef.ail be filed by a citG : Mi <-r feUijtCt of f nign Stale. ! Vi’-i. Iu ;.ii cases afilc'ing uu-baSi-adora, the pubi.c mini.'iers and coasuls, and T. -e m wt.nh a State j fcb- be a par tv, the Supreme Court iilau.ii have app • ;a> jurisdiction, boih :.s to law and fact, j ut.der such regUic-tions as Ccngies? may, by law, • Lave direcied." | Now, sir, it is upon thes.- clauses that I rely, to ; show not only that ti e powe< has not been grant* | cd, bat that it js prohibited. In order, however, AUGUSTA, GA., WEDNESDAY MORNING,, MARCH n, 18G3 to construe these two clauses conecrly.it is neces sary to refer to the Ist section, article 3<i, which 13 us follows: “The judicial power of the Confederate States shall he vested in one Supreme Court and :n such Inferior Courts as the Congress may, from time to time, ordain and establish. The .Indites both of the Supreme and Interior Courts shall hold their offices during good be.hurinr, Ac “ An analysis of these quotations from the Con* suturioD, g’ves the following us their true mean s ing; 1. That the Supreme Court and such Inferior Courts as Congress inav, from timeto time, ordain ! and establish, constitute ibe entire judicial nta- I ebiupry ot the Confet crate States—its entire ju ! dicta-v department. The State Courts form no | part of it. * • 2. 1 hat the Supreme Court is tbe head, and the ’ Inferior Courts, directed to be “orda ned and J established,’’ are subordinate parts of the ejstern ! of the Confederate judiciary. 8. That the forum—that t’s, the head—has origi ! n« I jurisdiction, ’.nail cases affecting ambassadors, j other public ministers and consuls, and those in winch a State shall he a party, and appellate jtt. I nsdiCtion in ail other cases enumerated. Appel late Iront what i Oi course trom those inferior tribunals, “ordained and established by Congress," . as cuns'ttut’.ng the subordinate parts' of the et’s ti’ta- Were the highest Courts of the several States, “ordained and esiahl'shed” by Congress? j Uo they h rut any part of the judiciary department ! the Confederate States 5 Hus Congress consti tuted mem “Inferior Courts” in the sense of the ! Coustitn tirin’ It has tint; amj I shall hereafler 1 show that it cannot it it woifki. • ! ihe provision .ol the Conetiiuj on which de j dares tha' the judic al power “ .ball be. vests ! ed in one iSiij retne Court.' and such Hileitcr Courts : s the Congress :.o.<y, front’time to tittle O'd.tm uud es ablish,’’ s ataodat.itv.. Ir m tkts I ■ deduce loss additioial t-roposilton; 4. 1 hat the insnda e ol the Cjnsitiu’.’on re qu ring that the judicial power of toe Conledeiaie .■si ops - giitU ht c tUd :u one Supreme Cou t, and in such lno-rir r CetiMs aa Oouc’css may, Iroro time to time, orda n and es'.abpsb,” is equal to a 'ieclaranou, that (he jnd.cial {Awcr shall be W-, I ed 111 no other way. ' It is taut tor unt I ■ ■, pr:K j hibilmn to vest in any Inti one t-upreme Court, ! and in .itch Interior Courts, as Vungm- may, hen’. | time to time, erdain tnd establish; net tu'ch as I H e I Statu may ord riu and es.abiish. Sil, Lire Senator from M-s a ipp, Mr. Phelan.) | asked yesterday, where should we go to obtain : knowledge of tbe powers of tbe Supreme Court o! I the Confederate Stales? To illustrate his quits, j tion, he quo:ad from ibe Const:.upon ihut -he ! Executive power shall be Tested ia the President, ' uhu, .aid Le, the Pi, sid-ni nevei c u!d l.tiow wl. bis powers were bv mch a simple aud na.sid oec uruji 11 ol power as that ? And so it w;s with rite judiciary departmen'. He said ;ou c. u:d never know what its powers were by simp, v lefeni g >0 tliut portion of the Constitution 1 which derc’tbes us tribunals; u , must on g, t 1 where ibe*e P ’W. rs are to he execaled'io fly lei mine them. I ask, where then must wr go* i'hal fienabtr ought to remember tha’ the quer. t un is, w/ure is ti e power t i,b.- ex -rcisert * Tom j i> w bn’ we are searching tor. to ascertain n &Ly part ol ibi-jttdicary tleparLuaer.’ d me C ta'ecta crate States is to be vested, under <l,« Constitu. tion, in the highest trtate tribuilele* He s u “„ ! the judicial power meet te dife ctssrff partly’ in the highest Slate C’mris. I suv.no. ! ur, not go [her. us i'je ol ihe place* nUer'e to.’ Constitution bus lodged the judicial (fewer, because Congress lias never ore, n ot und e-.noli*bud them us “In- 1 fermr t oris” in the sen e u^t^yensinuttoo. N'-s , sir, a word as to the right-of Coagre.-s to I consimiir the bighe t S ate Cohft-?a part of the Conleddrate jndtciary. it has not'attempted to do so directly. Hut whti’ warrant wouidkt have, in the Cuaatimtir.o, to do so* Cau'ii ».«. ih^ . JUUu.Uii> **i tti*» s.s.e-tsj-ni (*»-..” ‘ n-'rr4^ rt liv < i!ie rV«pc‘o f ive Shiite’ f/*gTsfutures and tut 1 Judges are chosen by election or appoint- j ment, under Htate authority. Is that compatible 1 with the ‘id clause, 2d sectioa, ot Hie 2ti Article ! ot th* Gs which declares, that the President “ahull appoint the Judges of the *Su« j 1 pretite Court and all other officer* of the Coated** j »:rate Slates, whose appointments are not herein j otherwise provided lor, and which ahull be ea laolmhed bvJaw,“Ac.? SupposeCongresHshould, j i ir terms, declare the State Courts a part of tbe • i Confederate iudtciarj—its loienor Couris— ! w. uld it not be lh*' duty ot the f'resideut. under j ; ih s provision of the Constitution, to appoint their j 1 Judges ? Whs&i then becomes ot Hiate auth< riiy ? Cun we tail to see the irreconcilable coTjUici to I which it would lead? Sir, the highest State ; Courts are either a part ot the Confederate Judi- i i ciary or they are not. If they are, it i« incuni. j | bent on the other side to fthovr it, and to show tbe ! I authority by which they nr? made r*o. 1 have j j shown trint they are not. and that Congress has I jno power to make them ouch. Ir they are not, ! 1 then the position of Senators, on th- other .side, ' involve? the absurdity ol contending for a lens- j | mg and reversing p-'»w-r. m the Supreme Court, i over tribunals wh.cn form no part of rhe Judici - ! ary department o ib : C n ederate Stales. ir, it. i.s true td.it we a <* discussing the p;wer j t « f C iHgie.is, under the Cos federate Conatitution, ■ ■to confer Uj on the Supreme Court appeifat*- juris* i ; diction over the ;• ghest *Mate cruris, in the cases j I enumerated in the 45 b and 46th sections, which i j 1 quoted in the beginning ot my remarks. But. i | as ib- language of our* Constitution on this point j ! is nearly identical with that of the Constitution j ' ot the United States, i; ie fair to presume that it : was intended to be asked in th»» *s.ne tecs*: >n i i b th instrument*. Hence, it is legitimate to re- ! f tr to ihe proceedings cl the Convention of 1767, j ! to ascertain whether the framers of the Conatitus j j tion of th*- United States designed to clothe ibe ; Supreme Court wi'h appellate powers over the ! j courts of the several Suites*. In that Convention, j ! tbe proposition was distinctly made, but not | ; adopted. On tbe 15;h of June. 1767, Mr. Fatter* j j son submitted his plan of go/eminent. His sec* j ; ond resolution, after enumerating the powers to ! vested in Congress, iu addition to those veMed j ! by the Articles of Confederation, continues: j • 4 Provided tout all presentments. fin»-B, forfeit* : | ures and ]*enalt;es to be meat red lor c >ntrav*ning j i .-u*:h acts, rules and regulations, shall be adjudged i by tbe common law judicatories of the Mate, in ' which any offence, contrary to the true intent and j i meaning” of such acts, rules and regulations, : shall have been committed or p-rpetra'ed. wr.fc i liberty of commencing, in the first instance, ali J fcuus ind prosecutions, for mat purpose, in tbe i superior Common Law Judiciary m f»‘tcb .St:ite, ! sutjici, ntv*rthtl‘** 9 for ikmrrtvwn < f all errors, j boto in law ard fart, in rendt ri'-y i dsftnsrit, to au appuil to the judiciary •f lh c L ntUd »S iat>&. i ! ( Madito* Papers, vol. 2. p. 864.) W about paus : ing to truce the action of the Convention through | all the various stages ot deliberation up**n th fubjec% it is sufficient for my purpose, tha* the proposition was uot adopted, and that nothing ! like it is to be found in the Constitution. Id replv to this, it may be said, that this teso* i !o*ion applies only to sins-s, forfeitures, Ac., and ' con .erred the liberty 4 of commencing in the first • instance iu the S ate Courts. This is true; but- !t is also true, that, to the extent o» the Questions ; enumera-ed, ir did attempt toc othe ‘be Judiciary |of the Uoiied States with appefia f e ; ■ wers over tbe S»ate tnbuonls. It was nor t.do, *. *i. Hur to urtdersrand tbe full force of thi* prspe sition of Mr. Futterson—how completely he i‘-- , Mgte*l to subordinate the judiciary of the eev-ral i is necessary, in connection with bis : third, to examine bis fifth resolution. The two S contain all he proposed, ?n reference to the judi* i ciary. The third it as follows : ! * 4 Tbst a Federal judiciary be established to con* '■i.-'i of nSupraae Tribunal, tlie wh.cn to be appoiulb by the Executive, ami to hold their othces ilwng good behavior, Jtc. * * * * * * * ’That the judiciary so established shall have aut iirity to hear and determine, in the first instance ( on aii impeachments of Kederal olhters; and I.V wuv o! appeal, ;u the dernier resort, in all c ;es touching the rights of ambas sadors t all cuts of eipture from anenemv, i.i alt cases of pii icies and felonies on the high seas; in all cases in rhish.foreigners may be interested; in the coustriK inn of any treaty or treaties or which may ari e on anv of the acts for the regula tion of trade, the collection of Federal revenue, Ac.” I Madison Papers, vol. 2. p. 865. | This givesai ither class of cases, in which the Federal judic:. was proposed to have appellate jurisdiction n the lasi resort. Appellate from what? Certai y from the Ct n-ts of the several States. And hy do I at.v so? Because Mr. Patterson’s piai fid not contemplate anv inferior tribunals to be stablished by Coag.-ess. It pro-, posed one suprt te tribunal vviihouT any subordi- j nate tribunals. Os course, therefore, when he I confers upon it cpellate power, he intended up. j peilate jufisdie »n over the Stale Courts. Ba' nothing like his proposition was fina.fr adopted by the Couvenli n. Mr. J’rev.den l.sdvsnse a step further, tud mamtaip that ts r exercise ot such a power is uts terly mcompati lestith ifce tfiepryiol our govern mint. I shall tlt Istop to nruve»tbe sovereigntv of the States an ‘-hat- oor OMnsntmton is a rnni pact between sok'reign g-.ates, designed to define I the powers of iff Con; derate Covornment, and 1 to constrain its acfou luiiuu its appropriate I Sphere. These fcrdr ositfiuS will ot be denied. Mor shall I conftur ? l:i:H-'hv showing tom the several States if the ivi hiu the ! limns ol their not only mde i pendent ot eacbjoiber, aIH the Cpnfedetate I Govei ument. Ic is sufiic raflpT my purpose . 1 -i»'iw, by quotat ens troij. lit Consutmiou, .., these theoretic ibttrinss are fully recognise j ill it of tt.cn of ike Suites ,re cosequal—thut'ia to I “ay, supreme witliiu liii limit# of its appropriate ! sphere; the onejo.s lSjirjgbt to tnsoass upon tr.c ! province of the (.flier.! Touching tie. suprimr.c- J ol the Confederate OoTeftmtr n;, tho 0.1 clause o' | itctioo Ist, article lb declmcs, that “This Constiiul.im aud ..-.Va c t the Confed erate States tvlifch shall be made m puittimce. I thereof, and all treaties made or which shall b- I made, uudrr authority of the Confederate States shall he the suU'dtpe law ot the 1.-.nd. raid the Judges in every State shall he hmiud thereoy auyttiiug in the Constitution or 1 ,-.rs of uuv State) la t b-- contrary notwithstanding.” i. relation to ,th» supiemat; of the several States over the reset v- tl power--) th j sth and 6ih clauses of ui ticlo 6.if, Section Is , dec!.re us fol, lows: ‘•5. The enumeration, in the Coor.titutinn, of certain rights, shill pot be cons'ru d to deny or disparage others re.lt n.-a by the people ot the sjv- ral .-Slates- * •’« The powers nut deltgattd to the Confeders at-.-S'ates by the Coraitu ’ jo, nor pn-htbite by u t > the State#, are jssbr ed to the States, re spectively, or tv the *,, il.-ieo!." 'l ! ecce,'ll# C”tifee; «*j tad the itvertl S-ate Gdfeihments, being o.,ch supreme within its up ; repriate sphere, tire co'-eq\;u;.--. The ou cannot nespass upotfdho doounio.i of tin ether. To do so is to destroy lu*ir conqualitv and -editt - toe one infringed uypofiti! ihe copdttion ol subordi nation to the OihCr.VTlie lowers of boih—that of the Confederate ;iud ol each State O varr., no-nt— are distributed into like co-ordinate dee partmunts—legislative, executive and judicial and since the Goyef oments them-eltos ate co t quul, it follows tlifit iheir several eo-ordinat de partment* are aho«s-tfitft h, each is independent ot the other and supreme within its appropriate j 1 It i<» interesting la this c<>ni:ec ion to note »w cautious way the (Nrnvention » f 1787, in gin mg j ihe supremacy aud independence ot the Ter*; j .States, withlu the limits o! the referred werf, j be the rejection of every prop >.sition r the:i : mbordmauon to Federal control or f>u 4 » ivisioo. On the 2tuh of May, Governor Randolph. presented | the outlines ot a plan of government. ti a series ! of resolutions, cf which the 6ih pro > sed to eu> 5 power the national Legislature, * * * ! “To negative nil Ihws parsed by the several i Slates, contravening, in the op on of the na tional legislatuie, the articles - union, or any treaty Subsisting aucer the authority of ihe : Union; aud to call forth th orce of tne Union 1 against auy member of the U;.ion failing to fnlti!« | its duty uuder the articles •■hereof.” ’ Maduon | Papers, vol. 2, pp. 732. j Ou ’.he same d*y t Mr. < Carles Pinckney p re.. j e<*nted his plan • * .iCo- Ututn. The elcrcuth \ article enumerates th prohibitions upon the : States, corresponding \ers near!}’ with tbase con* | tamed in tae Const; lithva adopted by the C t. • i veatior, and 'i3«r«e * vi ;ed^that “T«i render the pr^bibi.ions effectual, th* Legislature of th * L'n orJ S‘.i?es shall have the ! power to rtrc»e o i*vs of the -ve a Spates i that riiovV be su posed to infringe the powers exn clueively de v ttd by this Constitution to Con , and • negai.ve atd annul such up do.’ ■ Mai son F ers, vol. 2, pp 745. J j The 10‘vU clause of General iiamiltcu’s plan *.vu.- 1 as follow . » “All 1 *r ot the j amenlar States, contrary to ■ the Constitution or Jaws of tiie United States, to ; fc* uitv ;v void; avi the better t>) prevent such i laws '.ting the Governor or President of ; eac-. Smte shai) be appointed by the General j (P •.ernment, and shall nave a negative upon the ia?vs about to be ct which he is the Gov »-nor or President. ■’ I Madison Papers, vol. 2, pp. B^2.J All these proposition* were zealously advocated by some ot the ablest and most lnflaential mem bers of ihe convention, who desired a strong cen iral government —not Federal, but uatioLiil, in its character. But they were ail rejected. \Vha are we to learn from iheir rejection Surely that | each State Government, in i s appropriate sphere, j wus designed to be independent of all control and j supervision by the General Government; that J f*ach co ordinate dep&rtrneni—legislative, execu i tire and judicial —of ’he one, to be equal of ihe correspi nding co-ordinate department of the j • iher, within i s constitutional limits. : Such is the relation between The Confederate, ..nd th Government f the several States, es I i tb.isbed by the the -: v of our system, as defined j and described in ii.' n, .nd from a i careful reVic-w of ih-: historyr of ny formation. , Then, the quesnon again recurs, if the judiciary • department of sertial State Giivcmments is I tupremt in its jurisdiction over the reserved ’• power—absolutely independent i>f all control or J supervision by the Confederate Judiciary—how ran Congress make the former subordinate by ! its adjiidicaiions. . a any -quest, o?:: (»f litigation, j reversubic by the iatt< r ? Both being equal with in :h< :r Slate has as much right to reverse the decisions of the Supreme Court of the Cor federate States, ..s the latter has :o reverse those of the former, it is as competjenJ for i. State LcgisUtnr.? to au thorise the one, as it : i - or Congr- ss to- authorize . the other. There is uo escape from ibis conclim sicn, but in ib' doevrire that th? higbes; State Courts stand in ihe relation ot inferior, to the ren ' C ederate States, as if they were th* “ 1 r*e”nr Courts” directed to be “ordained ui d <s.abi; v hed * by Corgre-s, which 1 I have shown to be contrary to t. e Congress, the theory of our Governmental system, and the history of the formation of the Constit ition, in ihe Cnovention of 178$. The consequence* of the exercise of the power > ’under discussion deserve ihe gravest considers i tion. The inevitable effect is to clothe tne Con* federate Government indirectly with the power to 1 : supervise such acts of the Legislatures of the sev« ■ ei al States as mav involve questions over which 1 i r is proposed to give the Supreme Court appellate ■ ■ jurisdiction. The highest Sta e court may decide - an act of the Legislature constitutional, thereby 1 | defeating the right of the party setting up the ; contrary. But the sections of our judiciary act ’ ; j under consideration make it competent for the j Supreme Court of the Confederate States to re«* verse the judgment and pronounce the State a;t ! unconstitutional, thus annulling the act of th»* I State Legislature. What is the difference between j l h ?s mode of defeating legislation and that of , j allowing Congress to exercise a veto ? None what- : | ever, except that one accomplishes the object m« ; I directly and the other directly. The supreme Court is the creature of Congress—its instrument j to represent and preserve the delegated powers. I But we biTe seen that the Convention of 1737 ■ rejected the propositions of Governor Randolph, Mr. Pinckney and General Hamilton, to confer on j Congress the power to do tffe same thing directly. ■ Shall we permit it to be done indirectly, through the Supreme Court, the instrument of Congress? It follows, also, that the Executive department, j as well as the judicial and legislative, of the sev* eral Slate governments, is, pro tunlo t reduced to a j co ndition of subordination. His power to enforce the judgment of the bighe-t court of his own •S ate :s destroyed, and he is confronted with ihe ! overruling decree of the Supreme Court of the . ! Confederate States, backed up by the army. * uvy, I 1 and militia for its execution. Thu : , the several | State governments, in all their depat tments, : • the txient of the uppellate jurisdiction of the Sim ’ ! preme Court over tneir highest courts, are reduced ! to a subordinate condition. if you admit the principle where will i»s upp icalion end? Not ; being countenanced bv th*i Constitution, the Con siimtion fixes uo limit. The Constitution gives j ! the Supreme Court appellate jurisdiction in utmost every conceivable question, civil and criminal, J thai can arts*? in a c-urt of law ot <; quity, except in the enumerated cases, where;r. ll confers ong « i rial jurisdiction. If Congress baa authority to * j cantor on it a reviewing and rtveising power, ! vet the highest State courts, upon a portion of ; | :bt«e uumerous questions, why r.i .\ it not do so jin reference to every question* If can declare | ihe State court? infer tv* courts , in the sense of j the Constitution, for certain quesfons, why not for al! questions? What ia; prevent Congress (rum treating tfce h’gh?st State courts as a portion of the judiciary department of the Confederate States Government ? There is nothing to prevent hvieh an absorption of ihe Staie court.-. It is u.iuipath'll from the beginning—outside of, and unwarranted by the Constitutn u li can hare no limit, but ihe irresponsible discretion of Con* grea.s which, at the bidding of party, or lust iv r power, or yearn ngs for a strong g >vernment okay, ui some :utur*.' day, undetmiue jut system and bring the State governments to .tie footstool or centralism. It may never be pushed to that j extent, but tLo tact tout it may.; and thus the re curved be pi act d a* the mercy or ine delegated pGwer#, ought to awaken our lire apprehen sion. The doctrine o. State sovereigntv it dear to *he Contvdsiute State*, hallowed by tbe saoetion of ihe most illusirious names that adorn the repub* i=cau briiool f»t 17V*S 0. lu u!l cases of compact among parties having no common arbiter, “talk has*in *qM > -ght to jodq* fur i J seif, as will '•/ infractions at >f iht tno’U and tutenure of rt* tlrtts” For the principle that underlies tins doc* ; trir.i we are now engaged :r. a bloody war, at the cost < f muuy hundred millions of treasure ana hundreds ot thousands of more precu us lives jWe Light for Hints sovereignty. But how fruitless will be the struggle it we yield, a’ - , l i-ini-* Wu<>!« h«< ttmn*'i •»•»* mm „ . T'swlttir.v.s up be State gover» i .ili«ftifs and erects ihe : Supreme Court into an overshadowing umpire to j deteimine, iu thi lust resot’, a'i conflicts between | the reserved and power*.? All (hat is j accessary lo clothe it with such gigantic power is J for Congress to pass sn act for ine*entorcement ! ot anv iuw.- compiuined of, and so frame it us tiiher to take from the State courts all jurisdic* | t’.'.n or ci*»!er upon the Supreme Court appellate J jurisdiction, from those courts of all questions ‘ aribiug under such act, and authorize the l'resi* j dent to en'orce its fiual jndgme ts by the employ . i ment of he army and navy ot Hie Confederacy, j If the hia orj of tne past d:d not furnish an iU ‘ lusir« f don of wiiat I have said, I might have 1 s; <»kon of these forebodings in the language o» j ' c jrjecture. I refer to the act of the Congress ot i ; ihe United States of the 3d of March, 1833, knowu 1 iuk ihe “Force Bill.” It was intended io enforce j the collection of revenue, under the tariff laws ot \ i l<‘23 and against the nullifying ordinance ol ! Soiith Carolina. It whs, however, a general law, ! | applicable to all the States of the Union. It ex- i t»*oded the jurisdiction ot 'he Circuit Courts of the , United Stan r to all cases arising under the revenue lawe. It deprived tbe State courts of all jurlsdie* | 1 t’on to redress injuries, on ucconni ot any uci j 1 done, under any r.f the States, in relation to reven j !n> c. It denied the writ of replevin of property, i ! m die h inds ol any perso., under tbe j ) Jaws. Whore suits or prosecuMon might be com- ; :i -need in a State court against any officer of the United States, or other person, for uuy act done j under the revenu' la7.«,*it authorized the suit to I b * removed to the Circuit Court ol tbe United Stale*, against tbe decision or order of the State » j courts. It any person was in custody or prison, un -1 det mesi.e process from a State Court, it authorized l I the Marshal to bring him before ’hr Circuit Court i i upon tub as corpus, that he might be released. It : d.speused with copies of records, when needed in ■ ! the courts of tbe Uniied States, but refused to be , ' furnished by the State courts. These, sir, are but I a lew of the features of tbe “Force Bill,” which j ' absolutely degraded and subverted the highest . | courts «*f"the several States and laid them at the (eet of Federal power. It ignores State sover* . ! eigntv, constitutes the Supreme Court the umpire briwten tbe Btates and tbe General Government, * and put the entire military and naval force at the command of the President to enforce its decision- - , j Who shall say that what has been done in tbe r United States mav not be rope ted, at some future ! day, in tne Confederate States* It is our duty to ( . preserve the entire and perfect .ndependence and : j supremacy of the State com ts within the sphere j of the rtserved powers. We thouid now, id tbe j ! lr'ancr of our Government, settle the question j ! forever, that « ongress has no constitutional au- . [ i tboritv to vest the Supreno* Court of the CunfVcJ- | t elate Spates with any appellate ; ar *Mc ton over j ! tb.? State courts. , j One t»f the ’ le ts urged >n behalf of theappel- j * j late power of the Supreme ':vtr the >:u.- Courts. 4 ! ! is ihe importance »>* uniformity of decision It is ; ’ ! sa d the several Stale Courts may decide the same | ! one ion differently, and that parties will never j . • |jjv, w what tbe law k, nnlees it be decided, in the : It.st resort, bv a tribunal of universal authority, ; * : o ver all tbe States. 1 Would not unde: value the 1 I um’orißity of judicial decisions But the irtde* ( . ! p. ritleu e and so; rcruacy of loe St..te judiciaries, ‘ j * i.mu the scope ol the reserved powers, is ir.fiu- j u. re imp: riant. Fp »n its preservation ’ I j,u» v depend, ns has shown, in?- tx:*ttnc? i 'land integrity of our whole system ol govern* - ! ment. , _ , . ! 1 Let’ibe jnrisdiction o f t&e Confederate Juci- 1 ' | c , 6 ry bv extend- d. tin'll i' shall be commensu- ! ■ ! r .t** with the delegated powers o? tbe Governs i men', end preserve uniformity within ‘.hat Punt: ! ih’n i* wiil fuliv perform the end f.»r which it ; ! wus created. The c- t>f decisions in State ’ j Oonrts would work but little mischieL The pbin* J ! tiff a!wavs has the right to s dech hi* tribunal, s ,nd htivi g *-e!ec’ed, he -ought to abide its deci ri s’ c acd be content. Nor has the defendant a No 10, right to complfl'.D, if the dec>i*ton be against him. He is vo'untanlya citizen or resident of the State, in which the State is brought—if in a State Coart—which fact given the jurisdiction; and like all men, in all countries, he is bound to yield j to the laws and adjudications of theplaee wherein he casts his lot. Mach s’ress is laid upon the fact that the two sections, uuder consideration, originally em ana ted irom the first Congress, after the Convention ! of 1787, many of whose members were also mem* . bers of the Convention that framed the Constitu tion of th- United States. General Hamilton was in the Cabinet, and Mr. Madison was in the House of Representatives. It is confidently asked, whether these men, fresh from the Convention, i did not understand the Constitution which they I assisted to form? Whether they would have the sections under consideration, if i they had deemed them unconstitutional* Thi* argument has always been estimated far above its , intrinsic value. The Constitution, like all other I instruments, is to be construed by its own lan j guage, illustrated by confemporaneons history and by the journals 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. | Beaid •*, it is well known, that, in the Conven* tion, there was an array of distinguished men— i such as Hitru llon. Pinckney, Patterson, Madison end Randolph—who advocated a government of I greater pow» rs than the Coc«totion which was ' adopted confers upon r—clothed ■ purposes, in framing been supposed by many of fikoyf sagKvpu.-f statesmen that they, w ith mottles np right, sought to engraft upon t i^JrtnsiWhstbn}by consiructn n, more power thaD thd Convention i ever intended t.» delegate, end thus, indirectly, i accomplish the r ardent desire for a strong Gov - ! eminent. 1 hat such is probably true, is per ; fectly compatible with the na ure of the human ’ mind, without the slightest imputation upon their ; puritv and patriotism Mr. Hamilton being in the Cabinet, and Mr. Madison in the House of Representative*, when the legislation which it. under c m siuera 4 i>n wa9 first adopted, no doubt their iufiuence was great, and uo one questions their devotion, to what they conceived to be the best interest of the country. Still they were but men, hub'e to err, and from the circumstances just mentioned, very likely to err. But we are at liberty, when considering a great Consu unonal question, and called to dea cide upon the solemnity of our official oaths, to differ tmm these distinguished statesmen. For myself, ! am u »: much inclined to relv upon the authority of illustrious inme*. I reiv up->n them, so Jut only as then; opinions aie seat lined by rumors. One good reason for an opinion is bet ter than a thousand opinions w ithout reason. There is another objection. Mr President, to settling ibis-qatstifn by tie authority und po tency of nam.*.-. It is a truth, and one which I suppose we a'l have experieucid in our own his t• fy, that men’s opinions change. You will scarcely tied any distinguished man, who figured in public life, w'hru these questions wete agitated, who has net occupied both sides.- They were doubtless honest, at the lime. I impute dishonesty to none, and least of all, to those distinguished sages of the past, whose memories I reverence and whose glory I prise. Indeed their honesiy chal ! lrnge.i my commendation in tins, that did j change tbeir opinions. He is either a tool or a ! knave, who never changed an opinion ; for no ! IB an ever yet lived who was so infallible in his ! judgment, so powerluland conciUMVt in the maj* espy of his intellect, that he was net swerved by obtained, and a more disinterested view taken, under diff.i eat conditions, confess he had been !in erro- So it mav be with these and other dtsv tiDCUisfaetl names ibal are inroked, to sustain these section* »f Tour jtidtciarv act. lberelore. J at ! t.clt very little importance to their opinions. I a.fc i th« .Senator from Miwtesippi (Mr. Phe au.) to uive me the reasons; g’re une the corstitti.iona. I authority on which you predicate your action; j show u <■ the lex tjifia in the Constitution, which ! authorizes vou 10 clothe the Supreme Court ot the i Confederate States with appellate power o»er the hioiieat State Court., and I will go with you. Now Mr President, having shown, as I think, i the entire absence of any express delegation ot power to confer this appelate jurisdiction upon i lie Supreme Court; that, by the Constitution, the I whole judiciary power of the Confederate State. ’ is Indued to the Supreme Court and such Inferior Courts as Congress mar, Pom time to time, oroaiu and establish ; that the mandate, that it shall be | thus lodged, is equivalent to a prohibition again., 1 its being vested in any othir Wav; ihal ttie pro* position was made in the Convention of 17«7, and j not adapted; that the power claimed is contrary to the whole tbeoi v of t ur governmental system, j i.s deduced from plain declarations of the Cousti* j tntionuod the history ot its adoption; that it j destroys the supremacy of ihe several States, , within the sphere of the reserved power*, thus ! infringing their sovereignly and degrading them \ to :i condition of subordination to the general j government; that ihe principle contended {oris ; capable of indefinite extension, tnd may be used I to subvert the State governments, the conclusion is I irresistible, that the 45th and 46th sections of your ! judiciarv act ar_- unconstitutional an*: ought to be j repealed. Ii is the doctrine ot the Jeffersonian school that doubtful powers should not be exercised by Congress. Is not this! to say the least, u doubt* ful power? It has divided the opinions of the ablest men whom our country has produced. It is M-day, dividing this Senate—each side equal* ly honest in their views. Who will say that a k j.owtr isclear and unquestionable m the face of such evidence to ihe contrary ¥ Then, for this f reason, the motion to repeal ougot to prevail. Mr. President, we maintain the sovereignty of , the States. We maintain that each Stale has the • right of self-government—that each has the right j to judge for itself, as well of infractions of ihe ; Constitution as ot the mode and measure of res ■ dress. The sections now under consideration are at war with this doctrine, and are based on a j principle which would authorize Cougress to erect I the Supreme Court into au umpire betwem the j several States and Vue Con'ederate States. Indeed we have seen that Congress, under the old gov ernment. did carry i; to that extent, oy toe Force , Bili of 1933, and clothe the President with au -4 ihority to enforce rs> decisions by military power. J It is onlv onerf ihe forms of coercing the States i nto obedience io Congress, however uuwarraat** b’e their enactments. We war against it—we battle for Stale sovereignty. This is the very gist j of the pending revolution. But what will victory be worth, t, a: ias*. we leave the Sia’es, through i the arm cl it- judiciary, prostrate at the feet ot Confederate a*un aiiuc ? Let i* erase this blem ish from our stuute book, whilst by blood and , death, we v.ad c*;e State sovereignty upon the i battle field. We cun accomplish the one here, in peace, by the stroke ot a pen. For the other, the | rest ive upon victory animates our armies; it 1 meets a uui re .-sal response from the 1‘ n.cto ! the Rio Grande, and it is echoed upon e?e y w.nu of Heav.-o. .v> .'urnoHouud unconquerable wo men. We aie to have no more peace—no revival ; ol commerce and manufactures until our inde pendence shall have been achieved. Our argn* ment is the thunder of artillery and tho inexora ble logic ol ihe dripping blade: our aim, to drive j *be invader from our soil, and r* scue Stale sove. ! reiguty from 'he shackies of central power.