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The New York herald. [volume] (New York [N.Y.]) 1840-1920, September 02, 1867, Image 6

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Important Opinion of the Acting
Attorney General.
Irard Defiance of the Supreme
t'oort Process.
The Action Pronounced a High
Power and Responsibility of the
WA<HI.NGrON, Sept. I, 1'87.
The following communication baa been sent to the
feeeldent from the Attorney General'* office: ?
Arrixirr General's Orrict, Angus' 24, 1887.
i*r. Pukcipes:?C.rcunis.anceg bare devolved epon
me the duty or laying b foro your Excellencv without
delay a ni.iter, arising within the province of this Department,
win !i nppe.r* to bo of groat gravity nod of
twnniueni urgency Herewith I respectfully submit dnoautenu,
niarkc I from A Inclusively to O. in which the
following adaiinisirati-e. difficulty develops Itself for
solution by the supremo magistracy of lbs repuhlio.
if 4 Vs. ...el., l t la i lorn. ?f (ha tV.
Vtiti d States for ih? district of North Carolina, besna
and bold ?l Raleigh od the first Monday of Jons '.at,
Cb t( Ji;ai!r? Cha-c mxiJ di, among other civil artiona
winch pussvd to j dgnipnt were two in which partiee
Dairy! and Daniel Kahnweilar were defendants of
record, as 1 am informed. I hare no particulars respecting
said suits beyond the essential fact that. In due
eourse alter Judgaeut against the defendants, the pr >per
writs ol ezecul un word regularly Issued and placed la
the hand* of the Marshal, Daniel R. Qoolloe, Esq., for
ibo purpnee of having them -erved against the property
ef the defendants. The Marshal charged his responsible
dopu?y, Mr. NciT, with that duty, who before executing
tho process was expressly forbidden eo to do. In a
witting to thst effect (A), by R. T. Frank, an oncer of
tho army, having command of the United Hie'es
Ouidier* -tenoned at lbs military poat of Wilmington.
Upon Information of the action ol the commandant of
amd po,t. the tfarshal, who was at Raleigh, addressed a
re'pcctfu! letter tti the superior officer of the former.
Mitjor General Sickiee, in which the Marshal of tbo
United States Tor that Judical district brought to tho
kanwledq* of the commanding officer of that reconstrue
lion district the laot that the process of the federal
oouria was obstructed by one of hts own subordinate
Officers (If).
Marshal froodloa does not appear, from this communication,
to have address d bimaelf to General Sickles in
the manner 01 a m ni tenal officer of Justice on the occasion
of a not us or otherwise formidable resDtauce to
aivii process, demandine of an officer of the armv the
Doi'eaaarv militarv support, an it seems might have been
done with perfect consistency and with unquestionable
obligation upon the off! er to respond, wiiemer
(he (Ifcndma were or wore not troopa of tho
United Males under bis command; but Mr. Gnodl'ie
appears to nave anticipated with confidence the prompt
taiurposltion of General Sickles for the vindication of the
law. as the supreme ohj-ct of bis allegiance. He a so
( ported hi* action to this office, with copies of tbo several
papers iC.) Upon receipt of the-e, a reply was
made to too Marshal to the effect that no further action
weld ho bad here m the abeonce of informaiiun from
Uenerui Sickles (D). It was confidently believed In this
dice that the obstruction w.mlil be nrnmntlv v-amm>?.i
fc? command of General Sickle*; or that, if no thought
fit to hesitate in that duty, bo would not knowingly
offer bin authority to rail into collision with tbal of ibo
national judiciary without Orst communicating with the
Mat of government Under daia of tbe Stb instant,
bowavar, fume tan or olovan days after tha obstruction
of process be.an, too M'irsbai roportoJ that be bad received
no reoponsa to bis communication 10 General
Mckios referred to, and bad seen it announced aa a foci
In tbe newspaper* tbal the action of Coionol Frank bad
baas formally confirmed by General Nckles (F).
Here: pun, it was deemed unbecoming for tbia branch
f public service to appear longer tnaenaible In any
degree to tbe paramount dignity of tbe civil autbortiy, I
and accordingly aucb instructions were communicated to
the Manual, under date of tbe 13tb instant, as ah >uld
comport with tha Rtatiitoa in iorce for tba protection of
tbe judicial power of tbe government. He was further
Instructed that the statutes in force for tbe reconMroclion
of the Southern d.ates did not extend in any
aspect to tbe courts of tbe United States. (G.) The
mb# bait been Mid, in nearly tbe sauie words, by tbe
Chief Justice of tbe United Mates, on tbe solemn occasion
of hta opening the emu whose authority is thus
contemned. (II > Under date of tbe 20 b instant, a
eport was received from Marshal Goodloe, in which he
enclosed a copy or tbe following communication,
add r stead to hie deputy:?
, Uba dec arts as Post o* Wii uiwotow. m c., 1
August IT, ltnT. f
M J . Ntrv, Deputy,United States Marshal, Wilmington,
N. C.i?
kui-Mj action In suspending. until fu-thcr orders, tbe
Mecotlon of certain decrees of the United Slates >urt? in
Jtonh Oar. Una, attempted to be enforced In violation of
Owners! Order No. in, su-rent ac lea from tbe head-purlers 1
CooiMid Military district, bavins been approved bv tbe Major
General commanding, I shall not permit, until 1 receive further
orde-*. the judgment or decree of any court to be euforced
in vtolat:on of ex:? in* orders, and shall use the
?ecei?arv foioe to prereot lb Very respectfully, your obedient
servant, R. T. PKANK,
Brevet l.ieutenaut Coloael and Captain Eighth Infan try,
Vommandiug Post, iK
Tbe Marshal add* that, la obedience to hta instructions
of tbe 13th idol , from this office, be will report tbe case
to the District Attorney for bis action, nndar the criminal
law* of tha United Males, which, ba aaya, it all that
can be done in tbe preeenc* of an overpowering military
fovea, until tbe government interposes. By this time It
lepivaumed that tbe proper Dietr et Attorney bu reMtved
due information of tbe offence. (L.) As yet no
xprevi instructions bare been issued to Wat oitlcsr In
tbe pnabM. lie Is. of eourse, expected and will be required
to act with wuatever resolution tba occasion May
call tor.
in we latest report received iron too marshal, which
War.- the d.ve ol the las', mentioned, be announces that
tbe tetter which 10 the first instance be addressed to
Mayor General Sickles, and to which fie has received no
sepiy. at Wt.raiDgton. he mentions an endorsement tb^Te o
.if several inquir es addressed, as he is understood
to say, to him, datedgal Charleston, August 12; but
be dees not rtats whether or not any
nrnatcre wan subjoined to theiu. He ftirotahes no lull
trens-ript ( th*so onJirtimeaa, hit report* a copy of
his own ma te in resp.inso io ih.ee referred to on the
earns letter. In bis endorsement the Marshal recites
apparently some ol the former ?"Where and when the
several rau.es of action accrue'; whetber the actions
were for debt or other eausnc; when the ?ui were begun;
when ju'(.ni nu were glveu and when final pro ess
waa issued," Ac. II the object of the inlerriwalorvee
wa to elicit data upon which General Sickles could
d-termino whether or not the proceetlngk were regular
and valid which had been cooduried to Judgment ac ordiuk
to law under the pre-IJ*jcy of t .e Chief Justice
i the lulled state-, 1 must say that It would be dullcolt
to imagine a mor prepo*t >n>a? affront to the lianrh
f justice, legallv considered, than to tbu ittempt to conatraluor
incite the ui material officer of the court to
isqj m into the validity of us proceaa in his bands.
The Marshal, with due propriety, declined to engage ta
(bo investigation (M).
Finally, by a rominunicatloo of the 2'Jd instant, a copy
of which a herew.iti annexed (S). the appruvaJ of the
law liepariment Is couirr untested to Marshal Goodioe,
with Instructions substantially to ths efieci that be shall
continue to execute process in coniormitjr to the aul.'ion'.y
of the court; that :>e is not bound to expose his
person to mar.t eat paril: that wheu tnenac d by i.irce,
as ;u tne pre-eet ina aive, tie 'hull repec the particular*
and ttamas of all otiendei-, with their adera and
ab-'Uor-, to ibt District Attorney js he has done tax the
Csenl rase; that be it reqm-ed <n deport himself as
ffeosively as possible, but that he is rsetautb rixed to
ontpromise tne dignity of tue court. wuoss servant he
is, by dr -ccn ling to negotiate with any (wrvoa, however
rwspcctable. for the privilege of lie. tiling It.* authentic
procese or of obeying the laws, and Ilia the whole d.fllenity
ie to be promptly aubmiued to tue hxec illve.
Thus the niatier s.anda.
Although it does not, in the humMe o- n on of the
ad- rsigoet, qualify in any decree up n ee ablishid and
quesiii.D b e prtac p e o legal obligation, Urn telan
ju which General e.ckl is and his auhordlaate offi. ere
atid aoldisrs beer tn tbe violated laws which are In force
fo' the punl-hmeat of persoas sua oberuct the admin strsti'in
of justico in the courts ot thw I u i.d Stair*, vol
It may be Jael to mention here that tbe remarks lie
wcuon of that distinguished ofllcer appear* to have b*ea
Crumpled by t ne real persuasion that an order issued by
Im-e ' in A| M iast, of wnicii, from an official oopy, I
guote eatiro the paragraph that touches this question, is
of such incommon digni.y that It is bis duty to enforce
it. .n us la-gewt construction. In defiance of the eounitu
I Mub 4 uat iiei At large. Ttia futlutriug 1a tba oruar;I
Juilfmri.ia or iMrra for tho pariamt of mnaay on
I atu'< if anion amine MttMa tbe Imb "f 1'"rem or. ltd"
I on a the tin. of Mar. Into. ?hiUI not be enfor *d agame'. t ie
I pro; ?r r i t v? ?, n of the defendant. P <we.l;;i,< ID aucti
awi of A"loa Bo* p?ndlnf hill be lUftd. and r.t ?nlt
or ptoren tbaii bo hereafter .tielUuted or otautetKr 1 lor
Mf'ttctcaoeriif a-Uoo.
I Tbia order doee o-t npreenir et apt emta in or proI
anas of the coarta of the I'mtei! Staiee Certainly eu< b
I aa eaceptma ennet hare app-Vir -d quite nno"ra><iare In
coaa of cootr-vereief be warn at reaeof didereot S ato-,
B far eiarapi the ludietai power of Ike i mted .-*tai?e id
I treated aaltror to ail tawi oi foa*re<e. 07 eipreea
I prorta.ua of Uta constitution. A atmiiDr grant ot junaI
diction Of Ueneral Strfclea musi here app ar-d ndl<*oiount
had earh brro m arie I In lii* order, for the entrant-hue
ment of the federal court*. Murh wore arwurd
would it ba- ?,?p?ared bad tha art ci lege bien tmparlAd
by gapernl order u> iba Coded ?tataa to inrtiUie auil,
I and real.ae, up.m MPMUM a.-aior a de'euu.tw pabUc
agent or a debtor, where lb# rvtaa of a Una had ar ?en
benrera the lPlb of imcncbrr, IMti, ml tb? l?ih of
M?V, I'M. Hul tbe eipedlea<-y <y crmltta'. pn.K-.uI
bona la ai leaet aa rally lodged la tha Uitrrettoa of *ha
I ?o<n mender ta the reennPtriKiion diatr.et aa thai of eol
lectin* del ta. It la to ba itederatood thai tM 1
ntent of eo nterfr tr-r of fha naltotiai cbrrea. r. rohbera
at UM ' .. Ipi MM nail Wthroogb tha intirutaaaI
ta tty of tbe national coerui la taa Caroliaae-u coa
di eted by tcbana a danrlog tbelr mnedmttoe from iba
forbaeia..ca of aiacaura agent* Tbera aaama to he no
I portability that tha order 10 goertion eontampinted
a neurpa. ua aa grow and aa perltone to tha food
I MM m a loraJ aOkcar. tinud M hpyp baaa
littcmaled that upon a loos# implication from so order
promulgated by a military offie?r, charged wubiu a circumscribed
locality with anomalous civil dunes, under
a provisional syvlem of pastoral va legislation, the judicial
establishment of tbe republic *at lo c>oc?i?e itself
ousted of J irladictioa, atripi>sd of authority and tiegraded
to subserviency ? Was, it eipoctad thai the
judges, in consequence of such an implication., woo d
unfaithfully turn tite r backs upon petitioners for Justice
? It seems not Tfc? constrootioo which applies
the order in q ;<v ou to ihe courts of the Uhlan Is evidently
An aficrtbought The ord'T is dated llib of
April, tin the tiih of June the Chief Ju-tee opened tho
court in Riieigli. That he pub iclv aunounccd m substaore.
for ti-e informal! in of all parties concerned, oa
the occaj m of reat.ug himself oa the bench, thai
It vu incoiupaiible with the authority of tho
national jud. uary to sit where a military authority ex1-teJ
which e ml 1 irapcd? its price ax, and that it was
sulely iu consequence of the fact that no auch military
authority then esis'ed that he felt willing to hold 'list
oourt, was rendered notorious by general puolication in
the o wspapers at tbe time. The order et proas! y forbids
the Instilulmn or proiecu'lon of certain suits The
court was held, after the solemn publication to the bar
and ttie people refarr >d to, and the eults in question
herein w re pi '-seated, all in open contempt of the
order, and of ail other orders tending to hinder the constitutional
independence of the jndiciary. Tet until
alter tbe departure of the presiding officer from the lo
eaiity, no e'eps, as far as I have Information, ware taltm
to euforce this order la the premises.
With the validl y of the order, es operating upon tha
judicatures of the States whose resuscitation hag boon
confided to the management of Major General Sickles,
and especially with the expediency of it, the present
matter la not In the least concerned.
I respectfully submit tuet the case is ens of those
which lie within the purview of tbe statutes In force for
the punishment of persons who obstruct process of the
United Hates, and is simply the caae of a high misdemeanor
legally oontemplated. But in vl?w of the respectability
of tbe principal offender, and the onrreInondinv
dinifBr tn lh? hItrhny rliimitv nf thu 1b* T nn.
deretan<T that it it deemed eereswry, la thus laying
before your Excellency the facta and documents, to
annex to the foregoing auiemeot some citations and
reOeotlon* which appear to tha undersigned to beQt the
mra occation of an incipient attack by arms upon tha
department of Justice.
It la reapactfnilr suggested. aa a principle npon which
difference of opinion cannot be anticipated in tbla country,
that there la no rightful authority bare which ta not
derived trom the ooueiitutlon and lawn of tha United
Mates It wou'd seem to be highly impertinent to
attempt to establish that prop alt Ion, and almost as impertinent
to areue this necessary renal'. Tlx:?That
all military authority mast be mediately or directly
imparted by, and oonaequeatiy dependent npon, the
civil antboritr. Action by military persona, therefore,
which la outside of this principle must be unlawful; and
if done with intent to resiet that principle, as embodied
in the constitution and statutes, such action, If overt
and with arms, n treason a> alnst the Called Mates.
Military power la hot a form in which tha civil, which is
the only authority, manifurts itse'f in action. A conflict,
therefore, between the civil and the military author ty
of ihe same aovereignty la logically impossible, unless
through the fault of public a rots, either c.' il or military.
The lawa of a country must, and the minister- of
those lews may bo, in harmony ; bat they msv not?and
tbia from innocent or ffsm culpable motives. These
principle* are of tb* utmost importance to public order,
and bava been ao recovnlz d bv politicians of every
school, and partisans of every faction of note, from the
foundation of the republic. Purely no political
party will repudiate, an none can exclusively
claim, these essential conservative principiea No candid
person would hesitate to accept their subatauce as
Indisputable; and we may thus eliminate *t iho outset
most of the extrane?)us wafers tending to complicate
the nofortunaie collision which has occurred, and may
bo warranted, I think, in inquiring whether il is anything
In law bui a misdemeanor in violation of the laws
In force for the furtherance of the Judicial power.
Bat the high rank of tb* principal offender, aa before
suggested, and (be salutary public objects 'o which his
exorbitant action would probably be ascribed, no less
than the great magnitude of the power with which he
conld support h s error should be feel JustiQed in euch a
course, are circumstances wnich give the occasion an
ex inordinary character aed Inspire the undersigned ]
with that senge b->th of its delicacy and importance <
wuicu uemuius me iniruuucuun uero 01 mo urmi piu?
of the subject, as pronounc d by standard auihorltiss.
rowan and spue8e op the judiciary.
Chancellor Kant says ?"The judicial power of the
linitad States t?. in pilot of origin and title, equal with
the other powers of government, and la as exclusively
vested in the courts created bp or in pursuan-e ot the
constitution as the legislative power is vested in Congreat
or eEecutive power in the President" (1 Conner,
290, 291 )
The ytderaliH, No. 78, Is an elaborate and In mi nous a
exposition of tbe central idea that "the complete in.lel?)udenre
of the cour s of justice Is peculiarly essential c
in a limited conUitution." t
Mr. Justice Story says ?"The importance of the g
establishment of a judicial d-partmmit in the national ii
Government has aireadjr been incidentally discussed." c
lie want of it constituted one of the vital defects of the h
confederation; and every government must to its v
essence be unsafe and unfit for a free people where t
such a department does not exist, with powers coex- s
tensive with tbe legislative department. Where there f
is no judicial department to interpret, pronouocc (
and execute the laws?to decide controversies I
and to ealorce rights?the government must either per- c
Ish by its own imbecility or tne other departments of '
government must usurp powers for the purpose of com- t
mandlng obedience, to the destruction of liberty." (2 J
Story Const., 1.574 ) t
The same authority nays, speaking of the judicial de- |
partment:?"To tbe people at large such nn institution
is peculiarly rniuanle. and It ought to be eminently
cherished by them. On lu firm and independent structure
they mav repose witn aalety, while they perceive in
it a faculty which is only set in motion when applied to;
but which, when thus brought into action must proceed
with competent power if required to correct the error
or subdue the oppression of the other branch s of go
ernmsok" illtd, 1,576.) Aud further:?" Thetramera
a tlialuonstltulinn hsrinv these crest nrtnrinles In view
adopted tiro fundameu'al rules with entire unanimity:? t
Ar t, that i national judic ary ought to possess powers I
coextensive with tbe legislative department." (Ibid, r
1,677 > t
Tbe convention which framed tbe constitution voted l
unaniatou-ly for tbe perpetual and invincible Indepon- l<
denco of tbe judicial department. (Journal of tbe Con- p
vention. ed 1806, pp 100, 168.) p
The Supreme Court of the Untied States says:?"Tbe
object of tbe constitution was to eatabUeb three great
departments of governmant?tbe legislative, tbe executive
and the )odlctni departments The first wee to pees
lews, tbe tecond to epprove and execute them and tbe
thlra to expound and enforce tbem." (Martin tu. Hunter,
1 Wheeton, 329.)
Authority on tble point (a so nsiform that the above
may conclusively eaiabliab tbe sanctity, tbe dignity and
tbe authority of the national uepartmeet of justice.
President Washington "considered the judiciary the
chief pillar upon which our national government muat
rnst," and Immediately upon tbe organisation of
tha Supremo Court addressed each one separately,
in wblcb be expressed hie sense of
tbe value or tbeir independence of operation
and solicited thair instruction C-eo vol. 10 Spark's
Writings of Washington, pp. M, 80 ) I could not with
greater humility conclude this particular topic, with my
own ganerai Impressions concerning It. than by ofterin*
tbem in tbe unimpeachable counsel of Judge Story ?
"Nothing." said that groat minister or justice, -If m ire
facile in republic* than for demagogues. under artful
pretences, to stir up comb.nations against tbe regular
exercise of authority. The** scltlah purposes are too
often interrupted by the firmness and Independence of
upright magistrate! not to make tbem at all timos b.atllo
lo a power whicb rebukes and an impartiality which
condemns Idem The judiciary, as the weakest noint
in tba constitution on which to make an attack,
is. therefore, constantly that to which they
direct their assaults ; and a triumph here,
aided by any momentary popular encouragement,
achieve* a lasting victory over the connilu'inn Itself.
Hanre, in republics those who are to prod', by public
commotion* or tho prevalence of fartioo are a'wavs tbe
enemies of a regular and iuJependent administration
of Justice. They spread all aorta of delusions in order
to mislead tbe public mind end excite tbe public prejudice.
They know full well that without tha eld or the
people their schemes must prove abortive, and tbey
therefore emp.oy every act to undermine the public
conQdence end lo make tb* people tbe Instruments of
subverting their own right* end liberties" (2 Story,
t'ontt. 1 fill. |
We must than, a* we see. recognise tbe judiciary as
the third part of the governmeuh And lat us now Inquire
what ? tbe sphere of its authority. Thle is the
same a* the question in what branch of public b tsmesa
la the judiciary tbe supreme power of tho nation. The ,
constitution ordains:?
The judicial power of the United Stales shall be vested la
one supreme court and in auch Inferior courts aa the Oou- 1
4 rs? war from hum to lira# ordain and establish (Art 1,
SCO 1.1
Tha ludiclal power Khali cit?nd to all eaac* in law aud
r.|uiiv arlaing under thlK completion. the laws ortha Un t ed
Mia let and treaties made, or wblrb ahall be mad a under
their authority. to all oases affecting ambaiaa1>ra. other
public nilu tar* and tenrili, to all raaea of admiral!* and
maritime jurisdiction; to coalroreralaa lo which the <>oltnd
latittea ?hall be a fi?rt? to eontroenralea between two or
n?>re Si?ic?. between a Hta'e and ctUieon of another Hlate,
betwaen ciilrene of dlffeteal States. between cltltena of the
a im* Slate claiming land < under grants of different States,
and batwoen a State. or cittfeoa thereof, and foreign Slates,
dtltenaor enbjects. (Art. S, see. 2.)
We see here thAt whenever within the territory of tbo
Ceiled state* irrespectively or peroooa or of circuta taii
'M. a (natter of controversy arises which It dietinrtiy
comprehended under nay one of the claatat ahotro
quoted from the constitution. and which it la tuca a
posture ae to ha susceptible of judt-tat action. It maat go
without adjudication, orataeil must he adiudlrated by
the court* of the United Rtatee. Thla provision being
organic, It la not lb the power even of the national
Legislature, if tbet body oouid be supposed ever to barn
made the exempt to rarer the adjudication of aay ana
of aurh rates aeaitml the <<>n*eat of the panic*, or in
derogetian of the power of the Judtciery to the Rcetulire,
or to eny pohscr or egenc* wbeleoerer. For egetnple,
a root rover* y arts.ng upon e contract bet wren
rlureas of different Stales, uudet this organic provision,
the per.tee hern a right to put the federal judiciary in
metion far tba eetUement of their dtspate. end it ta
ohTioue that this right cannot be Impaired without aa
amendment to the conaltiutlon.
The judicial power of the foiled States" li a anil,
fa the ooort ration tt it mentioned in the singular number,
and the reasoning of the Supieras Court in the caee
of Martin v* Hunter, it to the effect that so much of It
as the i-ooelllulion left Congress in %#? in Inferior
courts wee incapable of eegregatnn and, r >ns*quentiy,
rested at a whole In the Jndt<: el eetab<istini*nt (I Wbeetou.
.110 I A? a power, then, it is to be eon aired of ea omnipresent
witbta tie constitutional epbere, and. oonae
qusntlv, with reapeat to the dignity of lewfni Judicial
pence*!, ll?e eour a of the earn* te not ef the least aiga
Bcaoah. end the lewa foraidJ.ug ohsiru ?i?a or it
make, accordingly, no distinction. The contumacy,
lb-refer* winch weeid be mere rulgar If offered to a
writ held la the bead of the Chief Justice of the Supreme
Court, would, in respect te the cnneolldeted Judicial power
end digeity, be of the tame legal qeallty, us if tba l.ts
wr t was deep sed In the hand* of tan humblest errranl
ef a court of the loweal grade la the system. The*
merh ea to tba paramount author.ty of the J'tdictery In
a I man-is u> which their power la attended by the chit
! eutetlee, eswag Ihgeefh tie eearta aM ?* ere
the organs of lb* power. To reetet that imwir anywhere,
and to any mutter within its constitutional
sphere, in to resist the whole of it, and to aspire to au
itwoe w th the Judicial detriment of the governim-oi.
li inlgnt occur to boiue ruinds that if <h a power on-r
the subject ma'.ten (.nft.led 10 It by the organic law he
vupmine over >lie legislature and the executive, and of
course, over the m iliary brunch of t ie executive, it
in'gut, la any given case, he luisatphod by the
error or the crime of the Judge. ll-i thus
li-.e every oiher evil wuh which wo inav laerfu Iv
cope, wi hont, In ue ordance wltb its provisions a eroding
the cunatitulioa, ha- Iwen anticipated and provided
acninsi >n that in Moment. K?<r miMinndoot, impeach,
nwut ij provided. and for error the right of, aud a'l
aaoeaaarv facilities for api>eal to auoth-*r court. The
Supreme Court. H l< I rue. cannot be eupervlsed; but it
baa no onritiei juriadic ion, with two exceptions only.
Such ia the ui.racur of the judicial power, as the only
and last resort for the aeiiletneiit o' a class of ca-e* aud
ooniro?'r-ies cnuniaratcd lu tbe constitution. (1
Cranou 177.17- )
But the an o-> of lb* Judiciary would be w holly Inef.
fectual an 1 the nowcr would not oe co-ordinate unleue
the result, In a proo -r case, was conclusive and binding
upon the other branches of tbe government
and the enure people of tbe countrr, for all the
proceedings or a court are conducted ft the
rake of the result, wbioh in tbe ftrial proce-a.
A control, then, over the float process la a control over
ibe wb'de proceeding. But a control oyer the who'e proceeding
la a control orer ma court, tbe Judges and the
parties. This would not be rootroiilng but abolishing
the court, whether be who abolished It did or did not
continue to employ ita Judge* and method* of business
for the administration of hi* will That ha did so in the
one ca?e is the aatne in effect aa If b# bad done It in all
caae*; for if be did it by the permission of the court it
*a< ibe court and net be thai eierted tbe power; if be
did it without permission, and becau** in bit opinion it
u Hffhl fftf him 1a tits an us IKnt neao k* *?" Aa oa Iw
any oihrr cut? la which ha forma a similar
opinion; and as It cannot ba foreseen what opint~>n
a man may form, It cannot ba foreseen In what case na
may think ha ought to Interfere; and If antr ease ia
liable to Iniarfereuca, no case ia cartaln of reaching a
judicial rasult; and under aucb circnmatancaa there can
be no legal adjudication, and conaeq lan'ly no court
'I'nte shows the real necessity of a judicial authority,
which is securely fortified a?ainst all possible interference
w ile the state of societv admits of Judicial se<ai?na
Such being the nature 01 the judicial (pncti>n and its
power ia the federal government, It Is ob Ions that tha
territorial field of Its otieration ia coextensive witn tne
national domain, which, with respect to the Judicial
power, considered a* a unit, is a single territory,
euhjevt to be dl*tded Into places of Jurisdiction
as may be moat convenient for the purpose
of administering lustre. But with respect to
the subject matters of judicial cognisance. It is far otherwise.
A large proportion of them presuppos? In their
existence organic geographical divisions, as Into .states,
inchoate States and the seat of the general government
the District of < olumha. These are political divisions.
Jud'Clal divisions exist, but they are altofether independent
of them. These are adapted solelv to the Drerimed
expediency of administering the judical power,
and may he altered from time In time by t ongress.
They may and usually do coincide in some degree with
political and other division* of the national domain,
'tut they are not neresta-ily coincident with such.
Tuev ere places of jurisdiction. Circuits are comno-sd
a?aally of sevaml entire --tates, and districts .omeflrnes
B imposed of parts only of different State*. This does not
afTaeb ma causes of action over which tne Judiciary
nhall eserci?e exclusive control, for ther remain the
wits as if each State of the Union was a district, and
nnl/ districts wexo established, and no circuits. When
a cause of action, or a criminal infraction of a law
nf 'he I'ni ed Su e?. arises for the action of the federal
luliciary, the cognizance of the latter (a forthcoming,
ind the only question is, in which district or circuit
lhall it be taken.
The coratnou territory of the nation Is also subdivided
Tor other purooeo.-", as for the purpose of collecting
taxes, duties, Ac., bv act of Congress, directly or through
sxecutive agents empowered so go do bv Congress
3 .clt divisions, like the judicial provinces referred to,
ire stibjcoi to change at tbn pleasure nf Congress. The
reconstruction mJlitarv districts In tbe South are
?xamp!es of districting for specific and ternjornrv
purposes. But here arises a most important
listtnction between Jud'ctal geographical divisions and
those of any other kind which have ever been created
Jy Corgress. Untir the 74tb of September, 1783, (1st
itat. 73 rt *rq ,) the judicial power ol? the United states
iras not all vested. Upon the p*ssa-e of the celebrated
let of Congress of that date, organizing the Inferior
jourt.s of tbe United -'tates, tbs wbolo judicial power not
lirectlv rested in the Sunreme Court by the constitution,
rested In the courts so created This proposition bavins
>oen laid down, after solemn argument br Ihe' greatest
if our judges, and nerer since disputed, must be accepted
is nnquuestinnable.
It follows from this that tbo power of tbe lecis'ature
annot goberond modifying and changing, from time to
irae, a* In tnetr wisdom may seem expedient, the oranl/ation
of tbe courts and the division of the countrr
nio iudicial provinces. Rut having once vested tbe Judital
power, which, as we are 'nstructed, Congress was
i mnd to do. that body cannot have tbe power to
acate a judicial tract. But It la otherwise with
he districting for revenue or other purposes. Tbe ooot
Hut ion has not inhibited their total abolition at the
ileasnre of Congress. But there la another reason whv
'engross could not abolish the judicial dlstrirta of the
Jni'cd States, th >ngh tbev may. and frequently do,
haege their boundaries The constitution pr vides:?
In all criminal prostitutions the accused shall enjoy
he right to a spoedv and public trial by an Impartial
ury of the State and district wherein the crime shall
lave been committed, which district shall have been
irevioualy ascertained bv law." (Intendment Const.,
trt. vi.) A power to abolish all judicial districts would,
berefore, be a power to abolish all crimlriar jurisdiction
>f the United States, which would defeat the law.
making power itself. The Judicial provinces of
Lhn nation are, then, something more than revenue
provinces or reconstruction provinces?employing
ihe latter term for clearness of distinction. Thtiujh
rahject to vhe mcdiflca'l <n of their boundaries, as may
>e expedient, the territory embraced In them cannot bo
>ither exonerated from tbe power of. nor deprived of
be right to, tbe national machinery of justlre, except,
ndeed, when violence prcvonts tbe operation of tbat
nachtnerv; but then only while tbe interruption conlouea
to prevont ihe regular judicial sitting*. A vio?nc#
cannot, of course, come from the Legislature itself;
tast of all through a mere construction or ite acts,
>assed with objects extremoly remote from anch a pur>ose.
What, then, la the status of that judicial province
rblcb Is designated hv law tba "district of North Caroma"
with respect to the aanctity of civil process T
By the act of Congress of tba 4th of June, 1700 ft
tat, 120), It la provided "that said State shall be one
IMtrict, to be called the North Carolina district, sad
here shall be a District Court therein," Ac.
By the act of 1Mb July. 1449 (0 Stat, lift), it Is prorided
that "the circuit courts of tba United Stater for
;he distnet of North Carolina shall he held on the first
Monday in Jano * * and all actions, suita, appeals, remgnizanccs,
processes, writs and proceedings whatsoever
lend ng. or which may b? pending, in said courts or returnable
thereto, shall have dty therein, and be beard,
lied, proceded with sad decided." Ac.
13 (tits act r?pMM r 11 wiii not dc pretaoaea rnsi an
if t of Congress of the United States ban been repea'ed
it clrcuma'ance*. If ever Congress hu tnipdired a ront
notional judicature, nnce established by the people, it
vns not bv en Implied repeal; nor could it be done by
my Implication but such as could be reconciled wtth no
itbcr reasonable interpretation of the statute supposed
0 work such repeal In the present oiatter, however,
he opposite Implication, from an act which to d; efTect
>n tba satna dar with the Orst ef the rei-ogitrucnnn
icts. amounts almost to an etprese provision for the
lontinnaoee of the North Carol.ua district, in common
vlth all tha others, as follows:?
That the Chief Justice of the United Pistes and the
iciortala Justices of the Supreme Court shall be a lotted
imoiii; the circuits now curing, bv order of the Court, and
rhenever a new allotment 'halt be required or found
'tp?dl??nt bv reason of alteration of one or more circuits,
>r of the new appointment of a Chtot .1 nance or Associate
inailra or otherwtae.lt ?hall be the duty of the court to
take the same. (Act of 1.1 March. 1067.
The eirrutU (and consequently tha districts composing
hem), now existing t. e., exiting on the day the
1 rut of the reconstruction manures (00k efiect, were
.he eipreas liaais of the allotment, to authorize which
at tha older,t of tba above quoted provision. The
possible "alteration'' of said circuits was anticipated,
showing that until one or more circuits should be
altered by law tbey were not to he otherwise recognized
than as beretotora. Accordingly, the following Is of
record In the fftiprerae Court, under date of Monday.
April 8, 1807
Order'.I?That the following allotment it made of the
Chief Justice and Associate .histlces of the >ipreuje Court
afthe United Mutest among the court*, sgreeah'y to the salt
of Congress in such cue made sod provided.
The aastgnmmt of the several Justices is subjoined,
among which the following appears ?For tha Fourth
circuit, Salmon P. Chaaa, Chief Joatioe.
The first section of lb# act of 1 on grows of July IS, 1802.
passed whan the rebellion was m fall bealwty. thareby
shosrtm; that the Interruption of the session bv rebel
violence vu the only ehaege which Congree- ni wilting
in reco nixe in the judicial bo* I new, provide*,
"Hereafter the dIMrlcta of Maryland, neiaware, Virginia
and North Camilla ah all coneUtute the Fourth
eimoit" (12 Stat STB )
It la thee made apparent, nnt only by earlier, but by
ooatemporaneoua legtalatlon of the name eeaeion, by the
aame Indlridnal member*, and almoet en the tame day
that whatever, under the ?;:ttution of the United
Stale*, either of aatti?v ,y or Jomdlctinn, attache* In the
diatriete and eireutta a? they viand in the utatute hook,
wax intended to be, and nil it he d*e*ed aad held to be,
f full force and rtrtue now aa heretofore. Bet we bar*
eeea that a tract of coantry, compound of State* or part*
of State*. once brought under the operation of the judicial
power, caanot without revolutionary riolen-e. be
deprived of or exonerated rmm a Violence 10 tb* oeiy
recognized exception, end that, by Coogreee. ae we ehail
hereafter eee,-l* re -otnlrod only while the violence lent*,
aad than aa an unlawful derogation from tbe judical
*?If it be admitted ttftt the todielai power ie Intact m
the dlvirict of North ( erode*, though the anttject mattere
of Itaaatherilv are limited to a category, it i* cer
tain that upon tboae vuhject matter* the conna of the
Hotted State* for that ttetrtct are the vupreme authority
of (be Halted State*
int* n?B prwfiw?f ?i wr iaq?yfiui?D? ;huki?i? ma/
bo wrtl tllaotratad, In cloain a okaub of Id* Dopartm<Hit
of Jootico, bp a word rmjwuni? tho eoocinaiv,. aad
binding harartar of ? Judgment nt taw. It ma,- bo
roodarad ??? br an taferior Marl; bot, if tba coart I*
oomprlr nl, tha jolgraant biap bo datland to M tha r?ry
law of lb* lead for tba part cniar mattnr adjudged (4
tUwia. ?9v to "aiopand ' a ludgronnt la a manner a >t
pomtod out by law ia, ibninfotr, la ?a?paa4 tbo law.
Trio Miproroa Coon taya ?
That# t? ao prlreir'a of law bailor orl'trd Ikon ohat ornrp
aot of a court of oomiwtom jurtndicoion ahall br prnou??d
to ho?n bm rtgbtlf rtonr lUltkr contrer? appear..
So loag aa a jwiauaiil mmoino in forer it la laltaolfotl.
dro-? of Ibr right of tha plolnt'ff to tbr thing edjndgrd .nl
girm him right to pro rat to niorute thr judgment. The
rrr.M of tbo mart, bowtrrr aopatont, ran bo o?amln?d oni?
h? an appollnta powrr. (Tootnoon . gk U. 10 Trloro,
O. 17) I
Sural? wo rood aot inquire whothar tbo Loglolatara
of tbo rnion boo etteraptod to root in particular aiorn.
tiro or miinarr offlcora an 'appolaia power" oret
ladgntrato, "bowwrererrnanoat, whtck tart boaa pro.
aoaaeed ia a ooart of tbo Catted tatgg. IM llM iMttrp
rather be whether the right of oxecnilng pror.ee* which
has issued upon such judgment ia anvthmg elee but one
of t'>e very ' rigors o' person and property," which, if
the p'atntltf lerhs lo execute it with a una of the re instruction
districts, the coiumauling olDcer u charged to
i "prut ct," l?y the exprr** terms of the It construction
lows (act of 2d March. 1807, section three)? It must 're
Ocv a J dispute If toe authorities and the statutes which
i hare been introduced are accepted, that the right ot
Ungating ia the federal court*, and the rLlit of
bong iricd in itieoi for violations of the criminal
code of the l otted State*, and, of coursa, the due
conse. ration of their authority In every form,
are a par of the right* to b<- nrotecied and the duties to
be performed by the reai-ecu va commanders of the ie.
cnu-traction districts. In thia view the error ol General
IMC It lea reaches the full etaturo of a perversion of authority,
which, if persi*ted in. most immediately acquire
the character of '.lie crime of levying war aga nst the
I'nited Shales, an undertaking which woul l not for a
moment be Imputed to the deliberate Intention of an
oiHcer honorably distinguished for hi* gallantry ia defence
ol th? constitution.
But it might be aaid, may there not have he n a doubt
a* to jurisdiction? Certainly In Ibis as ia an* other
m titer there may have been a doubt; n it it would in ult
the intelligence of the Commander of the Second
Reconstruction district to Inquire whether or not be supposed
bimrelf authorized by law to forbid the Sunrerue
Court of the United State* from hearing causes affecting
persons inhabiting the Stale* ot North and Soutn Carol oa
without hie consent. Nsturahy no pereon could besitaie
whelhor be bed such n power, witbont considering
whether it wae not his duty toeoerco the court by arms
if it should resist him? Wt must talis It to be oertaln that
It could not have been In the cmtempleti >a of General
siekiae wu?n issuing his order na 10 to dispute witb hla
sword the authority of the Supra roe Bench. Tat, it ta
equally certain, that if be had been disposed to aaeertatn
b>a authority, through an adjudication by a competent
court, a decision night have been procured with tbe
greatest facility. A defendant oould bare raised tbe
question of jurisdiction in n arlr any case at tbe term.
If toe Judgment was then advree to tbe power of General
ctcklea, It must bare appeared aaay to procure a final
and conclusive decision lu the Supreme Court on a writ
o>' error. If that officer bad a doubt on this subject
then, be matt bare Known tbe lawful oouree for lia solution.
When a difference arises between a military
agent and n court as to tbe Jortddictioa of
tba latter, and the former presumes
to decide it for bimaelf in hit own faror, tbe act can
bear ne other name than usurpation. Bat it may be
thought be did ao enly an to toe inferior court, and not
as to tba Supreme Court Now, though be may not
bava sospected tba fact, n moment's reflection most
show that the Interference which is onder consideration
was an interference by General -ioklea witb the Judiciary,
including tbe Supreme Court of the United 8 is tea.
aa a whole, and tba force which, throngb Its subordinate.
Colonel Frank, was threatened agaiaat the process
or tba Circuit Court, caonot. I think, be distinguished in
law from a similar three:, rudely directed, to tbe Judges
of tbe Supreme Court at Washington Tba process,
which was In Marshal Goodloe's hands, and. Indeed, for
anght that appears bete, may hare been *a*ued In pursuance
of a mandate from tbe Supreme Court, remanding
a cause witb directions for flintier proceedings, in conformity
to tbe decision of that co irt. A control over
such proco?a would bo a control over tba whole pro.
oe 'dlngi, and the court itself lu august Judges of their
Judicial wilL
Moreover, if final process may be controlled by the
ordur in queation, ao may tnrsoe process, or any step in
litigation; for tba order eipreesiy commands that carta
n wins be stayed, and that luce suits, not yet initialed,
ahail not be instituted. If the intererenre with process
wh'fb is now in band could be Juei'fled, so could an
e'fectual Interference, at any stag', and in any case, at
bis pleasure, in the Carolina districts, be made by General
Sickles to prevent all appoai to the Supreme Court.
This, potentially, is nus in it the juriaditcinn of tbe Snprome
Court itself, abolishing the federal courW as so-b.
In tue locality; separating bis district in one vital partlcu.ar,
from the national bodv politic, and denrirlmr
Congress, tbe Executive and the people of all mean* of
etnore ng his suoordlnation to tbe United State*, except
by force of arms The virtues of no man may be permitted
to authorize him to aspire to so dangerous an lode
pond nee of bi3 fellow-citizens.
So. if there had been a doubt whether the powers of
the I'nltod States courts were affected hv the reconstruction
law*, the proper way to solve it was the very thing
which would bo totally excluded by tbe violent action
which has been token in tbe premise*. But la there eo
much as a doubt T
THS axcosjKTRocnox S-ATTIH.
Three acts of Conerew pa s undT tbe designation of
the reconstruction laws, via : those of the 2d March, the
2T.J March and the 19:h July. 186T. The preamble of
the flmt declares a state of political and social dissnlutinn
to bo impending or actually existing in several
Slate* of tbe Union, and ibat, in consequence of their
condition, and for the purpose of effecting their restoration,
tbe proposed legi*laii?n has become necessary.
Supposing the conditions to bs ts declared in tbe preamble
of tbe first act,, these statutes are to
be treated as eminently remedial and eonr.
rvai.ve. Tbe States being prostrate, In tbe
orinion of Congress, tbe object was to restore them.
Cut the legislative and executive departments of the
government partook in no degroeof the prostration, a*
would be conceded; and bow much did the Judicial department
partake of it ? If the object was to reconstruct
what bad fallen Into ruin, so that it should be
restured into good order, shall tbat which Is in good
order be overturned f Obviously, what was left of order
was to be conservod, and wnat was dlsordsr was to be
restored. In respect to the revenue, the msiis, Mc, I
reflect to tho courts, the deposition Is exhibited to
dostroy. Yot the wbole Mrios of provisions In the
several sets contains nothing In which 1 can perceive a
source for such on astonishing tnlsoonstruction. On tho
contrary, the following act, which, like tho act relating
to the allotment of Justices took effect on the same day
with the earliest of the Reconstruction acts, appears to
demonstrate the oppoiite view.
an act aalatiau to armsis axd wans or bshor to tub
scrssas cocst.
Bp tt enacted, Ac., That where any appeal or writ of er.
ror has been brought to the Supreme rourt from any final
judgment or decree of am inferior court of the t olled
Slates, for any judicial disin t in which, subae<|t>eniir U>
to the rendition of such judgiueut or decree, the regnl ir
sessions of such nou-l have been suspended or interrupted
bv insurrection or rebellion, such apnesl or writ of error
shall Cm- valid and effectual, notwithstanding the time Urn ted
br law- for brlng'tig the aame may hara previously espired;
and in eases where no appeal or writ of error baa been
brought from any such judgment or decree, euch appeal
or writ of error may bo brought within one year from the
passuge of this act. The provisions of this act shall not apply
to any case in which the right to bring an appeal or writ
of error had expired before stioh suspension or interruption
of the regular sessions of the court. (Section 1, sot of
March* 1887.)
This art, if regard be had to Its epecisl object, may
be taken to be in pari wuUeria with tbe Reconstruction
laws, and to tho like anient, under the rule, they ere
ell to be read as one lew. Like the three acta above
mentioned, tbe object of this wet to remedy mischief
which bad arisen out of the rebellion; but for tbe purpose
of thta remedy the Judiciary, and not tbe district
commander, were to be the instrumentality. Rights of
appeal wnich had not yot expired by lar?e of t<tne were
cut off by clrrumetanree Tbeso cirrctceUncea continued
until the limitation expired, and witn It the
right, after which th*y ceaeed. The object now wao
to revive Mid rights. Tbe eircemstanres which bad
intervened, and which had now oeescd. are den- ted In
tbe acL They are thus defined la it ?"The regular
sessions of the court have been suspended or interrupted
by insurrection or rebellion. " Ttn* act by unmistakable
Implication euows, on the day or passing
tbe Kecvo-itrucitoa statute, that with tho exception
of the euspeoelon or Interruption of
tbe regular sessions of the court by rebellion, die., the
judicial establishment was perfectly Intact, as if there
hid been no re be lion and no occasion for restorative
legislation. That this only interruption had, to the mind
of Cony roes, wholly pasted away, at least, on the 2d of
llsrch, Is rvideot from the faot tnat tbe act was passed
granting s thing to he done now on the express ground
ibat hy ouch interruption it could not have been dons
formerly, and requiring that It be done within one year
hence, ae therwlse the time which, le ibe absenc or
interruption, run* sgxlnxt the rfctit, snail run la the districts
wtiara the reflaf la to take effect as II niaa elsewhere.
Such. In reaped to Its dignity, Its power, and the uaiiapalred
Integrity of lu machinery, la the tadictal tauiilnhiuenl
of the tailed State*. To guard lie supremacy
ib the administration of justice, Ceagreas has provided
tern Iswa
nmsmnttrr roa hsianwi ipoicial Ai-monrrr.
The following prorlslons, among others, belong here:?
If an* person or pe-sons shall knowingly and wilfatly
obstruct, resist or oppose any oOi-er of the United .suae* in
erring, or sttemptmg to serve or execute, any meats pros
i nw o-wsi ri.ni, or any rule or srder of any or the courts
of the b'ai.ed .Mate*, or any other legal or judicial writ or
tiro mi whattoerrr, or ?hall aaaaufl. beat or wound any
officer or other perron duly authorised In eeretng or ereruling
any writ, rale, order or praeeaa or warrant aforesaid,
err persoa so knowingly and wllfuUy offending In the
pr*mset shail on conviction theraef he Imprisoned, net e*
needing iweira months, and toed, not easeedlng ffML (id
3Uth April, 1710. section XL)
The offeaee of instructing proceae coexists. eays Mr.
Juatioe Washing ion. la roTsalag ts giro up possession,
or 10 opposing or obstructing the execution of the writ
ne to reels si viotsseo wblob it Is Is ths power of the
party is oaforee. (Halted State* vs. lewry, 3 Wash.,
ISO I Any obetrnctios to the free actios of tbe officer,
or bis lawful assistants, wilfully placed In his way for
the purpose of obstructing bini, la sufficient, (2 Curie.
c o.. eaa.)
And what in proosen nador this act? The ooarts say
II embraces every legal protesa whatsoever, whether
issued by a noon In sessto*. or by a Judge or magistrate,
or commissiooer. soil at to the doe administration of aay
law of the (United states. United States ra bah I as, a
Wash.. 33A )
Again ?" ir aay persoa or persons shall, oorrupUy or
by threat* of force endeavor to lofluaars, intimidate or
impede any iurnr, witness er officer in any court of lbs
United Metre tn tbe discharge el his duly, or shall, corruptly
or by threats f for e. obstruct or itnpodo u>o due
edmlnisirailoa of justice ilierein, every person or person*
an olleadiag aha I be liable is protscuiioa tberelir by
loaicinapri. inn upvu iuiiiiwki woix".
tab ad by Am, m*ic??4ib| $603, or by inpn ? > at.
Dot eir.eodtag thro* month", or both. according to th?
nature ud ag*ra-aliou of tho oftene*." (Act of tid
Marah, lMt, aaottoa ?, ? Slat, Mi |
Ta<we law* an- la fore*. If lb* Precidaat cod Id bo
aoppoand to b* willing to ?u*p?ad thorn, it * certam that
b* baa ant th* power. Ho mutt, howaror, otacato tbo
law*. What then, a bail bo dono wita theeeT I ? >!
eotutdor. boforo ononiodin*. lb* pocaltar energy with
which tha ererutire lepartcotot m bo iad to act whor*
th* prorogation* of th# inarmed but majortte Judiciary
or* l lauli-d Th* *B*o*tlon of tho orioiianl law* of tbo
I'attad Slaw a, aaJ eepeclailjr all oveb a* aro latoadod to
guard juaicial aothonty. belongs, under tb* President,
to th* supervision of the Attorney ilenerul. It happen*
tha* to devolve upon thit olBoo to r-fleet tb* Indignation
which tb* law ODOoarago* id tho judicial broaat against
an laaubordiaetma which, wbea It refuaoo revnroaee,
darroya pottrr. unl*o* tbo drpermant to wbieb tbo aaMonet
oword i* coaflded put* lt**lf id motion for tho
Vindication of tha oonrtunuoaei miaatera of JMtw.
anro**iRtuTT or tb* aiautmva.
It lo not without diOldnne* that tb* uaprunr* of th*
*eca*toa evoke* a further and final remark to *b'Og the
legal raaponaibillty herein of tbo Prwidanl of the t'altad
W hate rar bar a mm a law cioatataplatea for ItMlf that
It (ball bo a * ecu tad. It la tbna with tbo roooaoo Iowa,
1 lb* yortai lav* tb# ffUaiaal Iowa aad tbo iblbrv lava:
and it is thus with the ^-construction laws, which lb#
pr-'sent Kxccutlva fo.U Ixiund to carry into effect, in ,
their troe in.out and meaning, aseeruln-d upon those
principles of Inlertuvti on which are tl?molrca i
a laci'ly substantive part of alt statutes whatsoever.
But all the law* of any country must oe presumed to j
be in harmony with each other': and, therefore, should
they app->ir to contbwith each other, the mconclila- t
tioo of theiu la a judicial work, if. un er the conditions j
of lue ca-e, the discrepancy W inhabit* of ind'cial acf'on.
If not. still um the oouilictini^iaws m,-,t lx? executed. i >
they mem be reconciled, and. conse v'eullr. In so-h a I
ca^e those who must .ieeuu? uiu?t e!?o to ih*' extent
interpret the laws. If lb? c4?slitut.ou be ?ue of the f
laws iu ?(.ie*tiou the principle is, of course, the same,
iiolem, Irleed, it tea cf stronger application. fl'hiof J ,1
lice Marshall, 1 Crunch. 177. 17? I i:
Kor the purpose of this execution of the law*, how.
star. there mint be au executive power. T.ns i?u?sr h
must he vested, or else the country ha? :io ourllut'ou. n
It may bo vested a* the judicial power under our government
is, in aeveral persona or deparrnoi;*; <u, as in h
some countries in a tvg assembly: cr ii may be veited h
in a single ind v.dual ' Wherever it i" vened there is ?
the corresponding reeponslhllay. If the courts of g
jnsticn are to be prote< tad fiotn de^radaiice, it ii
can only ha through the executive power of ii
the State. It cannot be bv the law making power, u
because lie laws are Ineffectual witho.it ex cuinn. t,
and that is impossible against resisUoc.a without physical
force, This, then Is a case for executive iuterven- b
tton, which, considering the tranweortaet value of en h
lodependent judiciary, la of the utmost sate l.'y of OOP
gatiuu, uuivm usiiaii appear mat |?| iiiutrpvuuau'm ui
the Judiciary la n?t attaclcod. bat only tb<t ihe exe u- |
tlna of a law, by an e*ecutlve agent, inrntveu a conflict
with the pretensions or the JudK- tary. Tne latlar would
aaam to bo tho slows of tbo officer charged with tlie exocutioo
of tho reconstruction of tbo Carolina*, and ha is
an executive officer. But .loriadictioB is a judicial question,
ana oa? vhinfc tbo Judiciary ha* in this inrtan'-e
decided, and doclded against tho executive officer.
The (attar, not acquiescing, the ease would resolve itself p
Into a eaa? of a collision between the executive and the Y
Judicial departments of a common government. That g,
defines a revolutionary relation between them. But has
that revolutionary relation arisen? 1 think not If the *'
executive power of tba United States reel its tho Judicial II
power or tho United Statoo there ia indeed such a rela- j
Una. But tha constitution of th# United --tales provides,
"The executive power ahall be vested in a "
President of the United States of America." (Art II., et
notion L) 0
All process of the federal oourta run In tba name of
the President of the United States, because tba man- cl
da tea of the oourt call blm to aetion as they do all to
submtsaion, and be must execute tbem as lawa of the h
highest sane lily, by tha whole power of the nation
if neeessarr. T
Ia your Excellency In a stata of collision with the na- tl
tlonal Judlciarv? If not, tinea tho whole axacntlva u
power la that veeted In yon by tho organic law, and can
be divested by nothing but a change of that organlo it
law during your lneumt>ancv. It mud follow that tha tt
"collision of authority" which w th* subject hereof ia tba
mere misdemeanor of a contumacious and' unfaithful
executive agent, who, having offended nsainet the law- *
ful power of the judiciary, haa rendered himself liable n
to prosecution according to law. But tba great ra?ponsi
bltlty which appears to me to arise on such an occasion,
where tha phvatcal power of the offender Is greet. 0
Is this:?That for th# sole Executive to suffer the Judiciary
to be overthrow in any ease would be potentially
to overthrow himself: and. therefore, I am solemnly
Impressed with the belief that, unless the President n
promptly represses the contumacy thnsfllecloead to him.
he will toe exposed to lbs Just Imputation of a culpable B
Insensibility to the oo-srdtoate dignity and paramount P
sanctity of the national department of Justice. Con- tl
tempt of law Indulged, speedily graspo at tha heart- - U
strings of public ordsr. So teaches history. *
Vary respectfully, your obedient servant, d
Acting Attorney Ueneral. J
To Andrew JonjmoN, President of the United States.
___________________________ t
.IfIII lletween Bill Arnold. of Brooklyn. nod ?
Teddy Duffy, of Beaton. for 9'AVO a Side- d
Hixtv.Seven Well Contested Rounds lo One P
Hour end Twenty Minutes?Duffy Bremks *
Ills Wrist nnd Ulret L'n the Fight. j1
Another fistic encounter, In regard to which consider- n
able interest bss been manifested, especially In Boston, d
came off yesterday morning on Long Island, and was
witnessed by about one hundred persons, the light lasting
one boar and twenty mlnntee, during which time
sixty-seven rounds were fought. The contest was
brought about some two weeks ago at the benefit given
to the English pugilists In this city. One of the parties,
BUI Arnold?an Englishman?halls from Brooiclyo,
and is about thirty years or axe. Ho
Is a blacksmith by trade, and works for the Brooklyn
Railroad Company. The other party, Teddy
Duffy resides in Boston. These two boxers met at the
above exhibition and agreed to fight, but conld not agree
upon the stakes. They again met st Coburn's and
Rocky Moore's benefit, when they came to an understanding,
and settled upon yesterday as the day for the
encounier. Duffy was to have the choice or ground.
Both men put themselves Into training, and agreed
to fight according to the new rules of the English
ring, for $260 a side. It was Inteaded that the
fight should take place at "Savla Rock," near Mew
Haven; but, for some unknown reason, the locality was
changed, andaqnlet little spot on Long Island Sound,
near Biker's Island, was selected In Its piece.
Duffy, who has been In the city ever since the match
was made, had Barney Mack and one or two others as
his trainers.
Duffy is about five feet seven inehes in height and
weighs about one hundred and lorty pounds. Arnold is
about the same height, hat weighs fifteen er twenty
pounds bssvler.
A steam nig chartered fer the occasion left about one
o'clook on Sunday morning from the long eoal dock,
near Hoboken. About ball-past eleven e'clook the
knowing ones began to cross the fairy, and wended their
way qaiotly to the dock, which rasa oat some seven or
eight hundred reel Into the river. Two of the crowd were
stationed at the ferry, to direct those who oame
over how to get oat to the boat. Everything was done
very qnletiy, the whole party repairing immediately to
the tag, en board of which they remained antU she a,
started. Both the principals, with their seconds, earns w
over la small boats so as to avoid arrest la ease the g
Jersey authorities should get wind of the affair. At a,
a little before oae o'clock they started ap the 4
East rlvsr. Alter a sail of about two hours s email m
black steamboat was seen coming op behind them, hoar- tl
lag as ilgh in, wh>ch was at onoe declared to be the
police boat. Eitra speed was put ea the 0
tug, and for teo miles both boats kept the a|
same distance from each ether. A close watsb 4
was kept on the mysterious looking craft, whlcn fob u
lowed la tue wake sf the tug. A council was held p
etncmw tha laa/4in? nfths anil that hfffiwl lA Ptin lh? Its*
arbors In Westchester county end make good their es- c
cape, (m making known the fact to the captain of the r
vessel he amd he oould not do that, but he kne* where h
there was n email dock, on the Long Island side, not far u
off, and be could make it in a short time, whlcb would u
g>ve the crowd nearly half an hour the s art of the sup- r
posed police boat. They accordingly lowered tbe lights ei
and struck over on tbe east slue. and soon made n
a landing. Strange to say. tbe dark looking ?
craft did not follow. Whether it was really tbe police t|
boet is not known; but If it was, the tug gave It tbe w
slip very handsomely. After all had got orer tbe tear
ol being arrested tbey agreed that tbe fight should onme
off where tbey were. A npot wee toon selected, end the
ring pitched. Thus all things were In readmeee when .
day dawned. At a little before Ore o'clock both men,
secompanlbd by their seconds, jumped into the nag. A
man named Burke, of Williamsburg, wan ch<>een
n-ferao, and time wan called at ten minutes to fire
Rocxn 1.?Both men worked very careful around
aacb oibar. Arnold being tbe flrst to send out a feeler,
be got In a luht rap on Duffy's face and seat in nn 11
upper cut on bis Jaw. Duffy made him a testimonial f,
with a left bander under tbe right ear and ono on the
ribs, when Arnold went down.
Romn 1? Arnold again led off. and sent home a N
sharper on Duffy's left peeper Ho rattled away lor a n
while on Duffy's ribs; but finally got a crusher orer the
mouth, which made him drop to avoid another bear/ "
blow that was auned at his ribs. "
Rorxa A?Both tnea kept off for a while, when Duffy 01
got la oa Arnold's cheek bone, drawing first blood. He
got ass la return over bis nose. t(
Rocxns 4, ft, 8 vtp T were fought cautiously. *
Rocxd g ? Duffy sent in a sledge-hammer'Mow on A
Arnold's ribs, knocking him off nis pine. First knock
down for Duffy claimed and allowed.
Rocxp# t aim 10 ?Arnold down.
Roitxd 11.?Arnold baring been knocked down la
three successive rounds, made him look sharp When ,
he came up he got In a Mow on Duffy's naaal or?au and
dropped. *
RorxnlX?Beth worked rery eautioualr. Arnold got e<
Rocan 11?Duffy tried to force ttie fighting and mhI H
, In two or three yood blows. but u noon aa Arnold atr uek a
him be went d >wn. It
Romp 14.?It waa now evident thai Arnold waa going tl
to play tbe drop game, to try to tire out hia opponent; ti
bo got In on Dud. a body heart y and went down.
Roo.ro 16.?Dully aucteoded In getting in bit left on
Arroid'a mouth, which cauaed it to aweil cocatderahly. <
Rncao 10 ?Dully again tried to force the fight aud H
caught Arnold in tbe neck and eent him headlong into u
bis corner
Ko *o IT ?Arnold got In on Duff}'a jnw and riba and
ireni down.
Romp 1$.? Duffy got In a blow or two, aa did Arnold. 0i
n't#, wnen they closed aort Arnold waa thrown. .
R?ran 19 ?Duffy wall to work on Arnold a ey??. tba
latter on Dutry'e nbei 1,1
Romp 20.? But lltUo work; an etcbaam and Arnold r
down. It
Roranll ? Arnold got a prenenl In tba mouth, one ''
over the right eye. and atreral on tbe nb?. whiia Dufly M
get eery little puuiebin*oL at
Roran 23 ? Both eery careful. Arnold got In oo C
Duffy1* no-e and dropped. <
R >n*D 30.?Arnold gm a teller In the back of tba neck, *'
whirb o ut blie to mother earth tnataatar o?
R wan 34.?Arnold got in two vary neat upper eula en **
Daffv'e Jew and one over bit rtgbt eye, wbico loid badly T
for him, a? it eoon began to .close, notwithstanding the m
fforia of hi* s-rond* to keep down the swelling. J*
Rorao 36 - Duffy got another o?er the right eyn and "
Arnold on# In the nbe, 'ha latter going down. *'
Rnrao 30.?A few etchaa see and Arnold down
Reran 27 ?Arnold made a ruab, but fell abort; be,
however, managed to get In a good on* oo Duffy * m
ribn. 1*
Rnrxo 24 - Roth again anreful of nach othar; Arnold e
In well on Duftv'a r ba again, while wis latter warmed tl
Arnold about ihe bead *
R men29 ?Tbie waa a well fought round; both stood p
opt> and punished eac h o her about the bend, when tl
tbey finally clnecd and Arnold waa thrown. _ __ 1
Koran .? ?Arnold let go bta ngbt and eengbt Deffy tl
on tba mou' h, but get for bn trouble n reap tear tba T
t*Ri|'lt. "
Born >I-A0 aicbMM and Arnold daw*. t ?
R < 32 --Bat Utile Bghtlng; an exchange again an A I
IrnoM on Ms kti es. B
Rovmd 32.?Both ebv of each other. Arnold got era B
>n the nh- snl ItulTy on lha nms. B
RMM IS ? Dully g t a rap over ihe mouth again at I
Irnold . " down aa ueml. B
! a t ? Arooljl worked on DoffV'a nhs, which tr' I I
>n him- severely, when Dully got to work again on I
l. tiold s vts:on. B
Rorxn as.?A close and Arnold thrown. B
Korsp 3d?Arnold got one over bis richt rye ai t I
Juffy oue in the jaw. B
Kotnu 37.?Arnold working on Duffy'a nbe; the 1st *r B
o i short every time. I
r : I now sent in a home "it on Dir: -B
lamaged right eye, which put it eornpletely in mo.' u- B
R.irsiv 39 to <W ?The flehtlng wss much theaime I
oth men lakintr and giving punishment, but Aru 4 I
so?t Irefient'v down. B
Etsd67?This wis the worst feorht round of si'; B
oth R >t severely punished, when DuTv finally loti hi B
ia man over to the side o'the rooes and r?nt out bie left B
ri'h test fu! intent. It missed Arnold, wbo dodged, an t B
tr tck one of ttie s'ake posts, breaking his wrist. He B
nmediately retreated to bis corner s tfferin; the moat I
paaaa sg mv. and being nnah'e to tight any longer,
pon the call of time hi* se-ond 'hrow up the sponge !e I
Jkeo of defeat and Arnold wss declared the winner. I
Had it not oeen fT"the shove accident it would have I
een a very long light, aud It U doubtful who wnuhl I
ave won.
The whole party returned in safety to New York. H
'ri/e Tight on Htslrn Iwlnnd?(trniid (lather* I
in? of the "Fntiev"?Their Perforiiiancea iw I
J'tsef Interrupted?Nineteen Koitnda la I
Thlrty-two Minute*?The Renteu Maa Cnr- I
ried Asvnr lnsenslhle. B
Saturday last, by pre-arrangement, a a umber or the I
rominent sports of the Prise Ring, residents of Near I
ork, Brooklyn and Jersey, assembled at a well knoww H
nortinz house in Jcreer Cllv in order to mala ik. H
rmcgeraents relative to fight to take p!aie bttvMa
tike Donnelly, of New York, and BUI Harrison, of
ireey, for $150 * Ride. At three o'clock the rendezvous
'as crowded br friends of both parties, who, after do*
jnaultallon, decided on adjourning to the neighborhood
f Bergen Point, where it wasarragnsd the "mill" should
sate off.
The two men and their tratnere end seconds were) oa
and, apd left immediately after the v round waa named,
bey are both unknown men. allhongh not novices at
10 bneineas, and have evidently studied the "manly art'*
> some purpose, as was shown in tba course of proceed,
tgs yesterday morn ng. Donnello, toe heavier of I ha
iro, is a blacksmith, sbont twentv.eight rears of age,
ad Harrison, a min?r. la onlr twentv-flse, and of lighter
'eight and splendidly built, much better tlisn his oppoent,
who, although having plenty of muscle and lin lenas
strength, did not show the elasticity and free dona
r Harrison in parryinr and returning blo-va.
The match originated about four ? eeks ago In a bar.
x>m in the Fourth ward, whore it was asserted by Don*
elly and his friends be was the "best man" of hta
'eight and size in the oitv?not a professional boxer,
[arneon and seconds took on the challenge and dew
oailed tbe first instalment?$25?which was met by
lie others with an equal amount Roth men then went
nto training, and tbe remainder or the monev was sub*
eribed by last Tuesday, and nothing remained to bei
one but choose the ? round and the time, for which
impose the persons before referred to met together la
ersey City lest Saturday
As It wa? and ta yet suppose that one of the eomatanta,
Harrlaon, intends to adopt the "ring" as s pro.
Beaton, many of the most prominent gents of that
tersusaion attended to wun*es the debut of the young
lenphyte and award him the n?ual honors. j
The gathering at Jeraey -City wa? very orderly, an*
eeh one of the initiated baaing been informed of the
etails of the prorramme. iher qulettr scattered to take
e*eage individually to the destination bv either boat,
ailroad or "Shanks' mare." A field within two miles
f Bergen Point, just off the highroad, was selected as
be battla ground, and tba fight was to come off at five
'dock in the evening: hot In the meantime the reel,
lents of the locality, inanitions of the In tent tons off
ucb a motley crowd of stranger*, rot an inkting of their
esign, and notified the authorities on the subject This
ltd the effect of obliging the belligerents to retreat, and
a a aery short time the dangerous soil of Jersey was
ft behind, and Stolen Island, le the vicinity of Factory,
ills, wee choaan hr the seconds end friends of the
At half-past foer o'clock yesterday morn leg, la ths
aw air and as the dew was falling heavily, the man, whs
ad bat e poor night's rest In consequence of thoir
light from Jersey, appeared on the ground accompanies
y their seconds, and after exchanging tba usual mints,
lone, eat to work in fine style. Donnelly being the And
5 drew Mood, ta the second round, by hitting his oppoent
a furious blow fall ie the face, catting hie forehead
nd bruising bts none seriously. Harrlaon parried other
rail meant blows, sod in the th'rd, fourth end fifth
Bunds showed some aery scientific plav end drew out
lonnolly to good purpose, le th? fifi h round he got iw
wo hard abuts on his opponent and ent him severely
ver the right eye, which eommispced to swell, aad he*
ire the sixth round we* began thetoptle wee completely
llnded end the flesh round exhibited nothing
at e largo black end blood* lamp, Towards the
ilgbth sod ninth rounds Donnelly, despite the injury ta
is saw, fought furiously, and was evidently bent on
itUng bis opponent tire himself. At the tenth round,
is caught him about the wain and flung him violently
? the ground. This snook Harrison very ranch, an?.
rlth great difficulty he was able to aoswer to the cell of
lme for the eleveeth round. Ho anccwded in getting
nb good blow oo Doeneliy's cheek eed another so the
ye, almost the same spot bef >re wounded. Donnelly
Murnod end again threw Haimaon, who wee taken
bergs of by his seconds and bad some stimulants edltnistered.
At this tin* Harrlaon appeared almost
sad up and went through the remaining rounds by
odging and playing the light weight games; bet la thai
iranteemh round, while ducking, tie received a frtghtfat
low on the forehead which -tunned him completely. He
tmo up at the eighteenth, and we* again badly beaten,
taking a few plucky attempts to get even with his op.
onset, who wee, bo waver, loo strong for him. eed in
)# nineteenth round a blew ee the cheat, followed by
nether ea the side of the hoed, knocked him senseless,
sd the victory wee declared ta favor of Donnelly,
iarrison fought romarkaMy well end displayed eoe*
datable ecieece, but wee too light sad bed not the en.
ureses of Donnelly, whose Mows were more fbrelble
d stronger than bio opponent's. The latter, It wee
longbt, resorted too much to the tricks of the
gbt weights, and weakened himself by the exercise ?
r dodging end ducking. He was very badly beats*
t?mt the face and chest, end the thumb
f bis right hand was broken. He wee assisted from
bo grounds by his friends end taken to a ho ass near
v. where be soon partially revived, and was then
insported to New Tork, where he amred In very bad
ondltion. Beyond a cut no the rorehead and a swollen
ye, Donnelly came off anfalv, aad was congratalatad by
h many friends, who werv apparently hygsly enter.
mw uy ?n? morning s wtnrrniiirrt. ui? party umv
p orderly end dliperaed q itetle <o thilr homes, but
try few of the Stolen Islander* beiar i?rare of the pro*
that took nlac* In their mld?t on the morning
I the Sabbath. The light lasted thirty-two inmate*,
od It ie aald by aome of these Interested that
i# same men trill again try tbetr hania with one
Bother la a eery abort time
nroti Jonea Recovering from Hi* Inlnrleo? i
.Hot entente of .HcCoole? ?hrt?nr?l Challenge*
n*r*f? Aaron to Kight lor HMIUU and the
U|k( Weight Cham lilnaalilp.4
Ciecnr.tan, Ohio, "opt. 1, ldgl, 1
10 o'Cluck P. M J
Aaron Jo see remains at hi* quarter* at Shady Grors.
is M<>med cheerful to day, and will speedily rooovao
on hie injuries, wbieh are le** ? >vere than reporttd.
MeCoolt, who remain* In the elir, appears at thg
atlonal theatra Monday and Tuesday night*, and baa
isda a proposition to Jones for two exhibitions. ona
ere and one la St. I.oul*. tha benefit* to be equally
ivided. Thecollecilon taken op for J >nea by MeCoola
a the cara ye-t inlav amounted to $200
F'iepard (light trelgbt) ha* ehaltenged Harney Aaron
i Okol at one bnndr-d and twenty pound-, for $1.00?
aide aud tha ctiarnpioo*htp of light weights. Barney
aroa baa not yat responded.
Hrtirtt Roraaar at Pi.camtro.?da Sunday aight ad
site a 'ata hour Nr. William Ilasilnga was publtoly antulted
upon tha highway in Flu?hmg by threa maa and
impelled to surrender a gold *? oh, valued at $300, a dintorn!
pla of the raise of $90 and about $40 la money,
le waa proceeding homeward from the camp meeting
nd stopped at F i'.*h ng with the aipecution ef eatcbig
a la e train to K<w York. Tbil it not tb# oaly eaaa . ,
tat baa occurred in ;ti.s neighborhood within a short ,
Pnowpan.?On Wtdneeday lett a young maa
earr m drowned wblla bathing t* *boepoboad bey.
In atraek his bead unoo a reek while diving, dial oca tin?
ir sack, and death inaiaatly entued.
Arrfwrrw Rirr ?SUpbeo Ptimaek, an aged maa,
gJaat faltener by trade, called a? the boarding bonee of
? Mra Kyin. In the v.llago o* Honor Petal, wb*r?
!> had none Hue before boarded, and applied for k>dgi
a H was told to go ep ataire la the wo ke bad
* rotly oci-tip ed. wbera be would And a light burning,
ii'.m ot proceeding to the opper Ooor he weal lot*
in ro. m wBere a young girt waa eleepmg and atirnpied
ti outrage her per?on Ibe cries of the chi d
ton attracted the atientioa of Pit mother, and upon
,i3 to the room ?be eatig'il him tn the act Httmeck,
teing that he wet dlerovered, led to the opper atory?
jd wan la bed. frtgaiag eleep. in a few mionlea. Ad
Seer waa immediately eeot for, too 8nmaek waa ar.
isted but pretended to know nothing of tlie affair. Od
uewtay be waa taken oofdVe ?qa1re Madden. He waived j
eiemtaetioa ewd wea eeot m tae Uuerua coaaiy Jail 4
i await the eetioa of the Grand Jury The little girl la
ut two reai? old. Stiaack ia a married man ewd bad
?rera; ebildran.
Tim Marataai Fiiar.?The Barmen contlaae Id'
rneeelowly. Cighteeo reeeele bare arrived tinea ear
lit itetie with about t 500 barreia. mek ng in ell thirty*
igbt ?e-aei? tad T.000 harrelt of me kerel tbat bavn
iut far been lialel ibto month. The mackerel ere add
i fart at thty errlre, aad pr'cee bete edvaaeed Ihd
retent week. Lett year eighty eeeeeli arrived daring
he month of August, ee It will be eoen there bee band
ulte e falltnc off tble tea to a. The probability new *
hat full two tbirdt of tba 0 at will make bet eae trip.
1?r abort Seel ere domg a little better of late, end a fern
gbl ferae have been leaded the preaeat mA-BM;
Mtm Adrrrftem, AegaMMdb

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