hended, that, notwithstanding this co-operation of the two departments, the legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the legislature to absorb all power into its vortex. This was the real source of danger to the American constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles" (Ib. 1,163.) double the advantage and diminish the dan-prehension. It was much more to be appreger. It would also enable the judiciary department the better to defend itself against legislative encroachments-whether the object of the revisionary power was to restrain the legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle or incorrect in their form-the utility of annexing the wisdom and weight of the judiciary to the executive seemed incontestible." (Ib. 810-11.) Colonel Mason was "for giving all possible weight to the revisionary institution. The executive power ought to be well secured against legislative usurpations on it. The purse and the sword ought never to get into the same hands, whether legislative or executive." (Ib. 811) The decision of the Convention was, however, against joining the judges to the executive in the way proposed. After this decision, when the Convention proceeded to consider the jurisdiction of the judiciary, Mr. Madison proposed "that the jurisdiction shall extend to all cases arising under the national laws; and to such other questions as may involve the national peace and harmony;" which was agreed to nem con. (Ib. 1,137-8.) Mr. Wilson made another effort to have the judiciary associated with the executive in the revisionary power. He thought "the judiciary ought to have an opportunity of remonstrating against projected encroachments on the people as well as on themselves." Adverting to its having been said that the judges, as expositors of the laws, would have an opportunity of defending their constitutional rights, he admitted there was weight in this observation; but he thought "this power of the judges did not go far enough.' He said: "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect. Let them have a share in the revisionary power, and they will have an opportunity of taking notice of those characters of the law, and of counteracting by the weight of their opinions the improper views of the legislature." (Ib. 1,161-2.) Mr. Strong thought, with Mr. Gerry, the power of making ought to be kept distinct from that of expounding the laws. Mr. Governor Morris said: "The interest of our executive is so inconsiderable and so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting encroachments. He was extremely apprehensive that the auxiliary firmness and weight of the judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from legislative usurpations than from any other source. It had been said that the legislature ought to be relied on as the proper guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. the latter supposition, no check will be wanted. On the former, a strong check will be necessary-and this is the proper supposition." (Ib. 1,165-6.) Mr. L. Martin objected to the association of the judges with the executive. He said: "As to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative." (Ib. 1,166.) On Madison said: "If a constitutional dis crimination of the departments on paper were a sufficient security to each against encroachments upon the others, all farther provisions would be superfluous. But experience has taught us a distrust of that security, and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper." (Ib. 1,167.) Colonel Mason, adverting to the danger that the Legislature would pass Mr. Madison seconded the motion, consid- unjust and pernicious laws, said this reering that it would be "useful to the com- straining power "would have the effect not munity at large, as an additional check only of hindering the final passage of such against a pursuit of those unwise and unjust laws, but would discourage demagogues measures which constituted so great a por- from attempting to get them passed. tion of our calamities." He said: "If any Mr. Martin's argument, he replied that the solid objection could be urged against the judges, in their expository capacity, could motion, it must be on the supposition that impede, in one case only, the operation of it tended to give too much strength, either laws. They could declare an unconstituto the executive or judiciary. He did not tional law void. But with regard to every think there was the least ground for this ap-law, however unjust, oppressive or perni. To cious, that did not come plainly under this | Constitution or under those laws. In all description, they would be under the ne- such cases, other than cases affecting amcessity, as judges, to give it a free course. bassadors, other public ministers, and conHe wished the further use to be made of the suls, and those in which a State shall be a judges of giving aid in preventing every party, the Supreme Court has, under the improper law." (Ib. 1,168.) Mr. Wilson's Constitution, appellate jurisdiction, both as motion for joining the judiciary in the re- to law and fact, with such exceptions and vision of laws, was, however, decided in the under such regulations as the Congress shall negative, there being-ayes 3, noes 4. make.* The power of Congress to make such exceptions and regulations should, of course, be exercised consistently with, and in subordination to the Constitution. It should be exercised consistently with, and in subordination to the plain provision that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution," or "the laws of the United States." The resolutions of the Convention having been referred to a committee, that committee accordingly reported a constitution providing that "the jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States," and that in certain cases the jurisdiction should be original, and in other cases it should be appellate. 1 There was still a desire for greater imped- It is plain, beyond all doubt, that the iments to improper laws. Mr. Governor Convention recognized the judiciary as havMorris said: "The most virtuous citizens ing, and intended they should have, the will often, as members of a legislative body, power of deciding on the constitutionality concur in measures which afterward, in of acts of Congress, and holding the same their private capacity, they will be ashamed void so far as inconsistent with the Constiof Encroachments of the popular branch tution. And until it shall be done, we of the Government ought to be guarded should be slow to believe that Congress will against." "If the Executive be overturned pass any act to prevent the judiciary from by the popular branch, as happened in so deciding. We should be slow to believe England, the tyranny of one man will en- that the desire to prevent such decision is sue. (Ib., vol. 3, p. 1,335.) Mr. Wilson so strong as to induce members, bound by was most apprehensive of a dissolution of oath to support the Constitution, to violate the Government from the Legislature swal- that oath and commit willful perjury. But lowing up all the other powers. (Ib. 1,336.) if so wicked a deed shall be done, we may A motion to require three-fourths instead of hope and trust that a reverence for princitwo-thirds of each House to overrule the ples of Magna Charta, existing long before dissent of the President was now adopted, the American Constitution, is still felt by there being ayes 6 and noes 4. (Ib. 1,337.) some American, no less than by some EngSubsequently a committee reported a con-lish judges. For centuries before that Constitution requiring only two-thirds of each House to approve a bill (Ib. 1,548), and the Constitution with this provision was adopted. In lieu of the words, the jurisdiction of the Supreme Court," was inserted the words "the judicial power;" and the words, "this Constitution and the" were inserted before the word "laws." (Ib. 1,439.) There was a motion to insert, "in all other cases be- The distinction is plain between the power fore mentioned the judicial power shall be to create a new court and appoint new exercised in such manner as the Legislature judges in it, and the power of judges of a shall direct;" but the motion did not pre-court which has been created and estabvail. Having disagreed to this motion by a lished to determine matters in it. (Jentlevote of six against, to two for it (Ib. 1,439), the Convention adopted the Constitution with the provisions as to the judicial power now found in article 3; secs. 1, 2, 3. The Constitution providing in so many words that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority, it is not for a Congress elected under that Constitution to enact that the judicial power shall not extend to all cases arising under that stitution, it was a principle of English law, that no matter whence commandments should come to the contrary, the judges should not omit or delay to do right in any point; that no judge should be excused by pleading even the danger of his life from the menaces of the sovereign. (Cotton, p. 364; 2 Hume's Eng., ch. 18, p. 339.) men's case, 6 Rep., 11b.) In the fifth year of the reign of James the First, Coke, C. J., with the consent of all the judges, informed that sovereign that no King after the Conquest, assumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice, but these were solely determined in the courts of justice. The King claiming to determine *Those words became necessary or proper, on account of the power given to Congress to establish inferior courts. a controversy, and urging that he and others | are to be respected, and those whom they had reason as well as the judges, Coke an- send to this Congress are clothed by the swered, "That true it was that God had Constitution with power to compel even the endowed his Majesty with excellent sense Supreme Court to respect those rights; and and great endowments of nature; but his to that end, if need be, to reduce that Court Majesty was not learned in the laws of his to a single person, if you please, and thereby realm of England, and causes which con- compel unanimity, at least in a decision cern the life, or inheritance, or goods, or which may deny the people's rights and fortunes of his subjects are not to be decided violate the people's laws. It will not do by natural reason, but by the artificial rea- for any man who ever read the Constitution son and judgment of law, which law is an of the United States, and understands the act which requires long study and experi- plainest words of our mother tongue, to rise ence before that a man can attain to the in his place here and say that the Congress cognizance of it; and that the law was the of the United States can not reduce that trigolden metwand and measure to try the bunal to a single judge, or, if you please, to causes of the subject, and which protected but two or three judges." his Majesty in safety and peace"-with which the King was greatly offended, and said "that then he should be under the A Radical Mob in the Senate of the United States. law, which was treason to affirm,” which Coke answered by citing Bracton's words: Quod rex non debet esse sub homine, sed sub deo et lege." (12 Rep., 63, 4, 5.) If, on the one hand, some members of the present Congress may seem in some respects to resemble James the First, it is to be hoped, on the other hand, that American judges holding their offices during good behavior, will, if there should be occasion for it, show not less of the moral firmness and in dependence that should characterize the discharge of judicial duty, than was mani fested by English judges in the reign of that sovereign, though without the benefit of such tenure. It is a pleasant thing to remember that in the twelfth year of that reign, when the King commanded his Attorney-General to signify by letters his pleasure to the judges that the argument of a certain case should be deferred, that nevertheless the argument proceeded, the judges answering that they held those letters to be contrary to law, and such as they could not obey by oath. (Francklin's Annals, 17, 18; Woolwich's Life of Coke, pp. 108–111.) A Radical Light v. the Early Fathers. C. R. The conceit of the wise men of the Radical power in Congress is well illustrated by the following extract from a speech of Mr. Bingham, the judicial syringe of Radicalism, who, in the face of these opinions, daily imposes upon the country such trash as this: In the debate on the Judiciary bill, he laid down the right of the people, through Congress, to control the decisions of the Supreme Court, by reducing or increasing the number of judges: "The rights of the people of this country He had [Special to the Cincinnati Commercial.] WASHINGTON, May 6. When Mr. Bingham took his seat, Senator Wilson rose to submit a motion that the Senate retire for consultation. scarcely time to address the Chair, when, to the right of the Chair, in the gentlemen's gallery, a few spectators commenced to stamp their feet and clap their hands in approval of Mr. Bingham's speech. It was promptly suppressed by the Chief-Justice, but very quickly spread through the entire galleries, increasing in violence as it went around, until it amounted to a disorderly uproar. Even the ladies were quick to catch the contagion, and gave vent to their enthusiasm as earnestly as those of the other sex. The Chief-Justice rapped when it was too late. He might as well have tried to extinguish a prairie fire with a syringe; when he rose from his seat and cried "Order," with all the voice he could put into the word, he was only laughed at; and for very spite hundreds who had remained silent till then joined in the demonstration, and made the Senate Chamber a bedlam. Some stood up while they clapped their hands, and others kept their seats that they might be enabled to use both hands and feet in the uproar. While the noise was at its loudest, the Chief-Justice, in an angry tone, ordered the Sergeant at arms to clear the galleries, but it was manifest that without the consent of the offenders, the order could not be executed. A few cried out, "He can't do it, he hasn't men enough; we won't go out;" and there were indications for a time that they meant what they said, and were determined not to be put out. The door-keepers attempted to enforce the order by announcing it, but they found the crowd very slow to move. The Senators began to get alarmed, for really the scene began to smack of the French Revolution, when the bly. crowd used to overawe the National Assem- | kept the galleries at least half full. Mr. Sherman attempted to solve the mystery by suggesting to the Chief-Justice that perhaps those who remained in the galleries did not understand the nature of the order. The Chief Justice repeated the order for their benefit, and again instructed the Sergeant-at-arms to enforce it, which he, with the aid of the Capitol employés he could find, proceeded at once to do. Mr. Grimes angrily asked, after surveying the scene, why the order was not en forced forth with, to which the Chief-Justice, who seemed to be getting quite nervous, replied that it certainly would be enforced. A volley of hisses for Grimes came next, and that, too, from the most respectable part of the galleries. Many a finely-dressed lady contributed to them. An attempt was made to get up a more violent insult in the way of a loud "bah," and some hootings were heard such as the rabble sometimes deal out to stump-speakers they don't like. Mr. Trumbull quickly came to the relief of Grimes, with a motion that the offenders be arrested, as well as the galleries cleared. "I would like to see you do it!" shouted several of the retiring offenders in reply. The galleries were by this time about half cleared, but not because of the order of the Chief-Justice. It got out that the court was about to retire, or adjourn, and those who had left had done so under this impression. Suddenly a few men cried out: "Hold on! They ain't going to adjourn. Let us see this thing out!" Then came a halt, and hundreds took their seats again, with the utmost unconcern, and totally indifferent to the order for their ejection. Mr. Cameron, amid the din and confusion, rose to hope that the galleries would not be cleared. He did not believe it fair to punish all for the offense of some, and hoped none but those who had made the demonstration would be put out. Messrs. Fessenden and Johnson sharply called Mr. Cameron to order, and insisted that the clearance be proceeded with; at which there was another volley of hisses and a few more hootings, and the scene looked more revolutionary than ever. Meantime, in the corridors, a few hundreds of the ejected had formed into a crowd, and commenced singing "Old Grimes is dead, that poor old man!" Finally all were cleared but the reporters' and the diplomatic gallery. The occupants of these thought themselves exempt from the rule. The Sergeant-at-arms quickly dispersed these by sending the posse to eject them. The British Minister at first remonstrated, then went out to find the Sergeantat-arms, and then again tried to secure the interposition of Mr. Sumner, but all to no purpose. He and all his choice company of distinguished foreigners had to leave. The reporters were the last and most rehad committed no offense, and ought not to luctant to obey. They insisted that they must be interfered with. A few of them shouted it." One of the fourth estate insisted on An in three groans for Grimes and Trumbull, and was about to start them in the presence of the court, but just then a deputy sergeantlifted him into an adjoining room. at-arms caught him by the coat collar and dignation meeting of the Republican reporters was extemporized in the corridors, but They were joined by the ladies with great before they had come to any resolution, glee. Between the verses the Iowa Senator one of them, imitating the example of Donwas liberally and maliciously cursed and nelly in the House of Representatives, prodamned as a traitor and Copperhead. One posed that they should all go out and take man attempted to make a speech against a drink, which was agreed to with great Grimes and the other renegades, but the unanimity. tumult was too great for him, and all It took nearly half an hour to clear the around him were too much interested in galleries: The scenes attendant upon the the song, which was thought to be pecu- process have been only faintly described liarly appropriate and piquant. "Will the above. The picture could scarcely be overladies help us to sing?" Certainly they drawn, for nothing like it for indecency has will," said another, and so they did. ever been witnessed before. Some seven years ago, when Senator Andrew Johnson made a Union speech in reply to Mr. Lane, of Oregon, and the galleries deliberately rose and gave nine cheers for the Union While this extraordinary scene was taking place in the corridors, and within the hearing of the high court of impeachment. Senators were wondering what still and the flag, Vice-President Breckenridge | the method, the real criticism should be caused them to be cleared. There was no against the requisitions of such duties of the disorder attending the execution of that General Government. order, and since then, until to-day, no such order has been executed. Rev. Henry Ward Beecher on Reconstruction. PEEKSKILL, August 30. Charles G. Halpine, Brevet Brigadier-Gen eral; Henry W. Slocum, Major-General Gordon Granger, Major-General; Con mittee: Gentlemen: I am obliged to you for the invitation which you have made to me, to act as Chaplain to the Convention of Sailors and Soldiers about to convene at Cleve land. I can not attend it, but I heartily wish it, and all other conventions, of what party soever, success, whose object is the restoration of all the States late in rebellion to their Federal relations. Our theory of Government has no place for a State except in the Union. It is justly taken for granted, that the duties and responsibilities of a State in Federal relations, tend to its political health, and to that of the whole nation. Even Territories hastily brought in, often before the prescribed conditions are fulfilled, as if it were dangerous to leave a community outside of the great body politic. are Had the loyal Senators and Representa tives of Tennessee been admitted at once on the assembling of Congress, and, in moderate succession, Arkansas, Georgia, Alabama, North Carolina and Virginia, the public mind of the South would have been far more healthy than it is, and those States which lingered on probation to the last, would have been under a more salutary influence to good conduct than if a dozen armies watched over them. The Federal Government is unfit to exercise minor police and local government, and will inevitably blunder when it attempts it. To keep half a score of States under Federal authority, but without national ties and responsibilities; to oblige the central authority to govern half the territory of the Union by Federal civil officers, and by the army, is a policy not only uncongenial to our ideas and principles, but pre-eminently dangerous to the spirit of our Government. However humane the ends sought and the motives, it is in fact, a course of instruction, preparing our Government to be despotic, and familiarizing the people to a stretch of authority which can never be other than dangerous to liberty. from advocating the prompt and successive I am aware that good men are withheld admission of the exiled States by the fear. chiefly, of its effects upon parties, and upon the freedmen. It is said that, if admitted to Congress, the Southern Senators and Representatives will coalesce with Northern Democrats, and rule the country. Is this Nation, then, to remain dismembered to serve the ends of parties? Have we learned no wisdom by the history of the last ten years, in which just this course of sacrificing the Nation to the exigencies of parties plunged us into in to rebellion and war? Even admit that the power would pass into the hands of a party made up of Southern men, and the hitherto dishonored and misled Democracy of the North, that power could not be used just as they pleased. The war has changed, not alone institutions, but ideas. The whole country has advanced, Public sentiment is exalted far beyond what it has been at any former period. A new party would, like a river, be obliged to seek out its channels, in the already existing slopes and forms of the continent. Every month that we delay this healthful We have entered a new era of liberty. step complicates the case. The excluded The style of thought is freer and more noble. population, enough unsettled before, grow The young men of our times are regenerated. more irritable; the army becomes indispens- The great army has been a school, and hunable to local government, and supersedes it; dreds of thousands of men are gone home the Government at Washington is called to to preach a truer and nobler view of human interfere in one and another difficulty, and rights. All the industrial interests of sothis will be done inaptly, and sometimes ciety are moving with increasing wisdom with great injustice; for our Government toward intelligence and liberty. Everywisely adapted to its own proper functions, where, in churches, in literature, in natural is utterly devoid of those habits, and une- science, in physical industries, in social quipped with the instruments, which fit a questions, as well as in politics, the Nation centralized government to exercise authority feels that the winter is over, and a new in remote States over local affairs. Every spring hangs n the horizon, and works attempt to perform such duties has resulted through all the elements. In this happily in mistakes which have excited the nation. changed and advanced condition of things, But whatever imprudence there may be inno party of the retrograde can maintain it |