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Tlie Greorgia Weekly Telegraph..
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Sketches of Georgia Xiawycrs.
MA( <)N. Fui!>.\ V. M ' '• I'
Ei.iOU’ST jWaIIkER.
It i» a real treat, (say* t^o National Intclli-
ccoaer, W which we are indabte.l for our report
of tho apeeeb of Hr. Walker, , and wbm*.i*ml
meB ts wo endorse and adopt,) to hear a speaker
Of commanding intellect and refiped culture, in
the rerv'acme bf hii powor, discussing a great
question whioh affords him ample scope for the
employment of all hia ability n»d eloquence and
learning.' Those who attended yesterday the
Supreme Court enjoyed that rare opportunity.—
No question of more, transcendent importance
vns ever brought before liny, judicial,tribunal.—
Virtually ten millions of people were the flora-,
plain ants. Their liberties are rutbleifly i^va-'
ded, a'nd they come bercrotlie ‘anprernb tribunal
oftbe land for relief. Nor their liberties afcne.
Tba Congress of ths United Statoe, having disre
garded the organlo law of the nation, and tram
pled upon the most fundamental Vlghti <?fj the
citizen in ten States in this Union, has levelled
a blow at the rights of all. By iU usurping, fist
the Courts are virtually suspended in their func
tions from the Potomac to the Rio Grande. The
gleaming sword supplants the judicial decision,
and military satraps aro issuing theirorders sus
pending the acts of the Legislatures of the peo
ple, and arresting the functions of. the officials
clothed with the majesty of the law. ■ The free
dom of the press it liable to be swept away by
the breath of a soldier. "Tha right of a jury trial
la enjoyed only by tho tolerance of the.., wourer
of a sword. .The privacy of home may at pn’ee
bo desecrated hjra file of soldier*. T6* 5 |rertjnnal
liberty of tue citizen, inviolable hraong freemen,
save by duo process of law, is held at the mere
mercy of a general and his subordinates. And
this crime against liberty, this outrage ppon
republican Institutions, this grosis infrectiia of
tho Constitution, is invested with the ions of law,,
and given the semblance of legality by thto; sol
emn proceedings of Congress'.
Against this t ideque injustice no appeal has
'th' ' ‘
been taken to tho highest Court of the lsnd—this
tribunal appointed by the • organic law for the
determination of constitutional questions^ and
yesterday, the great argument, which was open-
ed on Friday wee's, by the Attorney General, on
a motion to dismiss the application for an in
junction on those charged with the'duty of en
forcing the law, and which motion was abl} rc
sietad by Mr. O’Conor, was continued by Rbbrrt
J. Walker in a style worthy of tb *aogust tiibn
nal and of the transcendent issue? involved —
Wo do not propose to follow Mr. Walker through
his masterly argument. We publish the speech
in fall. It speaks for itself. It ia tho crowning
effort of a life Illustrated by many eminent ser
vices to his country, and in force of reasoning,
in breadth of statesmanship, in familiarity with
constitutional principles, and in aptiiudd and
fertility of illustration,, it is qestined to take
rank with the great masterpieces bf forensic
eloquence, and forever settle Mr. Walker’s place
amongst tho great constitutional lawyere.of this
country. -
There are several points, however, which we
cannot forbear noticing. We think Mr. Walker
has silenced the ontcry against political decisions'.
He has not lot a shred of argument with wbleb
that demagogic cry can bo maintained. Ilq shows
that most of the great decisions which sprung
from the great brain of a Marshall, or werellltw*
trated by tb© learning of n Story, have been po
litical in their character. The United States Bank,
dividing parties at tbs outset ol tho Government,
and fbrnlshtng the point on which several Presi
dential contests hinged, was not ruled out of court
on the ground of its being a political question.
The tariff woa a political question, os is the ques
tion Involved In the Millgan case and the test-oath.
So, too, the construction of treaties involved the
highest political considerations, yet, by the terms
of tho Constitution, was imposed upon tho Su
premo Court; and the various citations which
were made and illustrations which were offered
were wovon into an Irretras»ble argument against
the absurdity of the clamor against political de
cisions. .. *Y * •*
Another point which was presented with great
power was that on the function of the Snprcmc
Court, as tho expressly created tribunal to which
the States ate entitled to appeal when aggrieved by
an invasion of their constitutional rights; and the
argument that to deny them redress Instead of pro
nounclng upon their claims was to Justify a trees
Sion, by showing cansolor it, was irresistible. This
is [playing into the hands ot extremists. Mr.
Walker quoted, with great force, the advice given
by Jackson, Clay, Webster, and others to South
Carolina Jn nullification times, to appeal to the
Court-in-:, i-l <*t nnd'Ttaking to set aside the leg
islation of Congress.
The .tatns.ol the States after the insurrection
was suppressed was very happily presented.—
After a foreign war, and the withdrawal of the
force which Overthrew the administration of law in
any States, its citizens would be restored to their
Constitutional rights, and could of their own
motion reorganiz ■ their State government under
the same Constitution, or create another and make
it to suit them, subject only to the Constitution
of tho United States. So, when the insurgent
power of a rebellion was overthrown,its ordinances
of secession beiug nullities, its officers created
under aliostile regime being illegal, the citizens
were entitled to reconstruct under the same Con
stitution cxi.-ting before rebellion, dr under one
altered by themselves. But they are citizens, en
titled to a citizen’s rights, subject to a citizen's
penalties lor misconduct.
The eonquercd-provinco theory niet with no
t-otlor fate than the heresy of political decisions
It was shown that the late war was not a war
within the meaning of the Constitution; it was
simply a suppression of rebellion. The territory
was not conquered territory; its people wore citi
zens of the United States, restored fo their con
stitutionul obligations—not aliens subject to tho
mere willof a successful enemy. The conclu
ding appeal to tho Court not to indulge in en
ovasion of their duty, by acting ns those who
wished tho downfall of our Government would
have thorn, but by discharging their obligations
as tho high court of last resort, wne most elo
quent and impressive. The speech and its ar
gument will long bo quoted os a masterly analy
sis of tho powers of tho Government, and an ex
haustive exposition of the funotions of tho Su
preme judicature, and a powerful vindication of
the principles of constitutional government.
Disfranchisement—An iMTonTMrr Con-
otkuction.—The Washington correspondent
of the New York Commercial Advertiser
writes that tho Attorney General’s elaborate
opinion on the disfranchising clftUf.os of the
Reconstruction Acts, will put a stop to the
proscriptions pf the Hoard of Registration
in Louisiana and other Southern States, by
which nearly every white citizen has bccti ex
cluded from the polls. The Attorney Gen
eral is of the opinion that every doubt must
go in favor of the citizen, and lie gives a very
liberal construction to several provisions of
the Acts in question.
Among other legal positions taken in in
terpreting the disqualifications, it s assumed
that the words giving aid and comfort to
the enemies of the United States,’’when they
occur in the Constitution, and consequently
in any Act of Congress, have no. meaning
whatever where the enemies arc rebels, but
apply exclusively to foreign wars, and to
alien public enemies. So says every authority,
English and American, since the original
words were first used in the ancient statute
of the twenty-flftth year of Edward III.
_ ’ Patrick McGrath, the last of the Feni
ans in Canada, was sentenced to death at
Toronto, on Monday, the execution to take
place on the 11th of June. The Judge, in
passing sentence, said he did uct suppose it
would be carried oat
NIMJiKK 'IHBEK.
<3HAQX.ES DOUGIIEltTY.
Judge Dougherty was born in Jackson
county. His father, a worthy and popular
man, died whilst our subject was quite a
youth, and lie was left to the care of a mother,
remarkable lor piety, and fine practical sense.
From her his character derived ita chief,
formative impress. Bv the will of the father
his sons were required to devote certain years
of their minority to Jaboi. He meant that
they should have the robust health andself-
S5!®3mgpSi?Sffl!RS|*i3nist(GS!*
tion. Charles, it is tahclersto’od, was held
strictly to the condition and he grew to man
hood unfertileinfluences of country air and
industrious habits. To these he may have
been greatly indebted 'hrf his admirably
developed phytiqxiil and 'sturdy self reliance.
Ho was educated mainly at Franklin
College, during the administration of Dr.
Waddell, file was an irregular, and
therefore, took no diploma. His education
was somewhat limited, and on that account,
it cannot be said bf him that “all knowledge
was his province.” Without acquaintance
with the dead languages, he was not in his
writings or speeches, a classic, nis English
education, however, was good: and he was a
mau of reading and general information
Judge Dougherty was admitted to the
Bar early after his majority and settled in
Athens. Ifio married Miss Elizabeth Moore,
a charming lady of that town, who presided
over his 'household with grace 'and dignity,
until his death.
Removing to Watkinsrillc, hc‘re.-idcd there
Vhe greater part vj his prc’te&siqnai life. In
(tie outset, he acquired business slowly yet
surely. Gradually his reputation pervaded
the circuit, and his popularity audio's income
increased, until lie was called to, the Bench.
He presided over the Western Circuit for sev
era! terms. The people of Clarke knew him
from his boyhood and loved and honored
him to the end. They elected him to the
Legislature just ns soon and as often as lie was
willing to serve them. He verified the say
ing “a prophet is not without honor save in
his own ’country.” Being an exception, lie
proved.the rule. Iu that county he was in
deed’ a prophet, and for many years, aided in
guiding its citizens, by the wisdom of his
counsels and the purity of liis life. h
During one of the most brilliant periods of
British history, that is, during the reigns of
Elizabeth, Janies anil the First Charles, the
administration of justice was,most corrupt.
An honest, independent Chancellor, or Judge
of the Common Pleas, or King’s Bench, was
a rare spectacle. They were either venal or
the tools of the Court. The counsel lor the
Crown were the unprincipled agents of op
pression. This was undoubtedly owing, in
part, to tho fact that these offices were held
at the will of the Crown, and the Crown
could, and did frequently, control the admin
istration of the law. Nothing was more
common than for the King .to issue his pro
hibitory mandates, both to his Chancellors
and to the twelve Judges. Then, the Chan
cellorship was in truth, as it is now nominal
ly, a political office; owing, however, no less
to the low popular estimate of judicial
functions. The people accustomed to
see tho realm governed more by court favor
ites and capricious kings than by laws. So
it was. Now myrk a contrast. The now ha
miliated Key-Stone of the Southern Arch ha*
never had a corrupt Judge. • ’
Dougherty was one of her judges. His
character shone with a steady light. It gave
out no darting flashes, but emitted that uni
form radiance which fructifies whilst it illu
mines. To just such light and heat is our
State indebted for her rapid growth frdm
colonial weakness to sovereign strength.—
She ou < s her greatness to her sons. And
they—why, they were the iruit of her clime
and her institutions.
No one of his collengues wielded a larger
influenco in the Legislature than this gentle
man. He was an eminent lender during the
conflict between the Troup and Clark parties,
and was always found, when battle whs
waged, at the head ofhis columns. His in
fluencc was not acquired by pandering to
prejudice, or by long and loud self-lauda
tion, as "the friend of tbo people.” He rode
no hobbies and practiced no clap -trap. In
deed, lie was unconditionally incapable of
demagogism. Firm in adberancc to his own
principles, lie yet did notallow obligation to
country to yield to party fealty. The records
of the State afford abundant evidence of bis
wisdom as a statesman, and the testimony of
surviving contemporaries, who fondly cher
ish his memory, authenticates the record.
Among the judges who liavo presided in
Georgia, wc have had, it must be confessed,
some poor lawyers, but, as before stated, not
one corrupt judge. Wc have a right to be
proud of that “sum of official integrity
which has characterized them, and uone more
conspicuously than Charles Dougherty.—
Native vigor of intellect may eke out defec
tive learning, but nothing can supply tlie
want of moral rectitude. Corruption consists
not alone in receiving bribes, l>ut ns well in
a shrinkingfrom the exercise of jurisdiction,
or otherwise shirking a judgment, from a
cowardly dread of public opinion, or a tame
subserviency to the behests of party. It is
one ot the glories of American institutions
that, thus far, the sanctity of “Judicature’
has been ail element of public opinion. Ac
cursed is that land where lawyers want hon
or and judges want virtue.
Sir Edward Coke was a bad tempered man,
but the ablest, and most independent com
mon law judge that ever presided at West
minister. He administered the law, in very
defiance of Courts and Kings, and he was
aLo a sterling patriot. lie was the author
and triumphant vindicator of the “Petition
ol’ Rights." I refer to him now, for the pur
pose of giving the authority of an immortal
name to the views herein, and. in previous
articles expressed, as to the dignity of our
profession, and the effect of a virtuous prose
cution of it. Writing to a young lawyer he
says, “Cast thine eyes upon tlie sages of the
law that have been before thee, and never
slialt thou find any that hath excelled in the
knowledge of the laws, but hath sucked
from the breast of that divine knowledge,
honesty, gravity and integrity, and by the
goodness of God hath obtained a greater
blessing and ornament, than any other pro
fession, to their fumiiy and posterity. * •
Hitherto I never saw any man of a
loose and lawless life attain to any sound and
perfect knowledge of the laws; and on the
other side, I never saw any man of excellent
judgmont in the laws, but was withal (being
taught by such a master) honest, faithful and
virtuous. Wherefore, a great lawyer never
dies* t/.prelit a*it iaUttaUu, and his posterity
continue to flourish to distant generations.”
The conclusion of Lord Coke may be ques
tioned, and was not verified in bis own case.
I do not hold him up as a model jurist. He
was a dry lawyer—severe, accurate and tech
nically profound, but wanted warmth and
expausiveness. It is a just title to fame, and
a claim upon the gratitude of the country - , to
be enabled.to say of a deceased lawyer, he
was n just judge.
j£it i«*not extravagant to say of Judge Donghlr-
ty, that he never exhibited a demoralising bias.—;
To err L human, and he may (iave erred in his
judgments,Tint never, knowing the right pursued
the wrong. lie was an excellent lawyer, not sb
much in the mastery ot technical routine—in
elaborate familiarity with the science as taught in
its voluminous records, as iu a thorough compre
hension ofita principles. Study, a knowledge of
men and oi.thair relations, backed by a judgment
cl extraordinary vigor, fitted him ior the Bench.
This latter quality is the balance wheel of the
mind, without which its machinery, however'
polished and strong its parts, work* badly. lie
was patient, courteous, and invited and appreciat
ed argument. His “summing up” was plain and
discriminating—so clear that juries were never
withont rules to guide their deliberations. lie was
no doubting judge, as it is said Lord Eldou was,
leaving questions open, and thus protracting liti
gation; but came to a decision promptly and an
nounced It emphatically. HU mind was character
ized, at the same time, by caution, father than
quickness. He was tolerant of tho mistakes of
inexperienced counsel, relieving embarassment by
kindly suggestions. He brought also to the aid ol
his administration of the law, habits of the most
exemplary morality.
The practice ol the Liw has severe trials for
young men : Such as eager aspirations and hope
deferred; apprehensiveness of mistakes in busi
ness; dread of professional criticism; hard work;
a'Scute of responsibility, and very often an empty
purse. But there are some things compensatory:
such ns the dashing ride? fo the courts and the
incidents by tlie way side; the genial tspxiliM
corps of the fraternity; the intellectual struggles
of the coart room; the frolic and fun of the
nights at the hotel; the return, and a wife’s sweet
welcome home. Such things were in the olden
time. Progress-^-ea called—his brought changes.
When Dougherty came to the bar, lawvers rode
the circuit on horse-back, with saddle-bags and
portmanteau. Then came the reign ot sulkies.
These soon gave place to buggies, and now rail
roads and hired hacks have pretty ranch super
seded everything else. No wonder that lawyers
are a merry set. Not one of his contemporaries
profited more by the compensatory things of his
practice than Judge D. His person was tall and
large, but not encumbered with flesh, combining
strength with activity. His face wa6 benignant,
hie mauners affitble and cordial,* but not demon
strative, and marked at times with a quiet dignity,
a self-respecting repose, lie was an exceedingly
temperate in-n, temperate in his appetites and
temperate in his mental exercises. So well-bal
anted were oil his faculties that each was, not the
tyrant, but the aid of all the rest Few men bad
the elements of intellectual and moral manhood
so happily proportioned. His persona] qualities
madu him “troops ot friends,’’ and his ability as
a lawyer constrained tbe respect of the ablest
members of the profession—such men as Upson
Thos. W. Cobb, Payne, Underwood, and D. G.
Campbell, all of whom were leading practipncrs
at the Clarke County bar when lie was admitted.
Cicero Holt, the- brother-in-law of Judge
Dougherty, entered upon tbe practice in Clarke
county, contemporaneously with him. His career
promised to be illustrious. His wing was strong
enough to have borno him into tho empyrean,
but just as he began to soar he was struck and
fell into tbe grave. At a later day, at that bar
we find Howell Cobb, Mitchell, Hillyer, and tho
late gallant and peculiarly endowed T. R. R.
Cobb. To the memory of this latter gentleman
it will be a melancholy pleasure hereafter to
devote one of these passing testimonials.
Judge Dougherty was careful in the prepara
tion ol his cases, Bearing neither tune m,. u\>or.
He relied upon an open issue upon merits, and
not upon management. He had neither the dis
position nor the talent for, to use the language
of a popular lawyer of his day, “winning a case.”
His speaking was not distinguished for fluency
or impassioned appeals, or sarcasm or wit, but
for manly reasoning and perspicuous handling
of facts. His imposing figure, benignant face,
candor, and real power of argumentation made
him n dangerous antagonist before a jury, and
not less formidable before the Coart.
Such is a faint picture in outline of a peer of
our professional realm—a nobleman by nature,
as well os by patent from the judgment of his
contemporaries. Ho diod in the prime of the
allotted three score years and ten, before time
bad dulled his intellect or faded the majestic
comeliness of his person. The summons came
suddenly, and his transfer was immmediate.
beyond that bourne whence no voico proceeds—
to that dreary habitation which gives no sign,
nud into that darkness upon which nature sheds
no cheering ray, but which Revelation has rob
bed of its gloom. BuLLr.n.
U. S. SUPREME COURT.
GEORGIA AND MISSISSIPPI ^JUNC
TION CASES.
ARGUMENT OF K.J. WALKER
The Nations! Intelligencer of Saturday, 4l.h,6ay<-:
great, argument was continued on, Jim Sd
iu»t bulbrt the Supreme Court, on the application
by Georgia and Mississippi for an injunction against
. the agents encaged in enforcing the Military Re
construction tjillrf' of Congress. The court-room,
was not as much crowded as on tho previous day,
but ontside the bar the scats wore all taken, and
tho space around the door was fiUv«V ( ,with those
standing up. Amongst the audience wo noted
.Senator Patterson, ex-Senator McDougall, tho
members qf the Judiciary Committee, Messrs.
AVijson, Marshall, and Eldriuge; Judge Under
wood, H6n. Joshua Hill, lion. Joseph "Segai-, aiid
a number of gnitleraen of the legal profession.—
Mr. Walker began ids argument at a quarter alter
eleven. He spoko until twenty-live minutes oi
three, and comniauded the prolouud attention of
all present. Ho sjoke as follows:
Mr. Walker said that lie never rose to address
any tribunal with ip deep a sense of the solemni
ty ot the occasion, lud of tlie momentous issues
involved In the controversy. Tho cause of the
Constitution ot the American Government, and
aud of self-gcvefiim^ut throughout the world, w as
now on trial—he beUevcd, upon its final trial—a d
it was now to bo decided for this country, for pi-s
terlty, and tor ati the world, whether writt. ^con
stitutions ere mere parchment scrolls ; Whether
they are words written upon the sands, to be swept
away by the first angry «syge b; pop dar passions
which iiuy roll over \UM; whether they can be
evaded by technical Issdes or pleas of want*)! Ju-
rit.diction, os' whether tiny turobh that remedial
process Which win eanb cihe Judicial tribunals to
carry them into effect. It is a,question whether
it is practicable to divide the Government, into
three separate departments, or whether the legis
lative department is to be omnipotent, and wheth
er by somepoten claimed to tie political, or some
made the arbiter, to <
tain a decision ^
lat point. SuHly there could bto no dispute
this Court was that *r'>ii-ra‘and,that on
which
on that
that
proper 'parties presenting Ugamplvo* -it was
bound to decide whether ot not a pmicuiar low.
was.coDDtitUtiotjiik and to-h|T,i»fsh pll the reapo-
dial powars preseriboil in the'Ccu*tiIUti11n.
This was said to be a political question, and U>
involve political rcsul a. Every aot ol'Cougres#
iu ono senso involves politi al questions, Be
cause every act of Congress operates upon thir
ty-six millions cf people as a law throughout
lie TTiiioti; -biil "has tlie court ever hesitated,
where the question vyas presented, to compare ar
act t>f Oongrisi wit If the .Constitution aqdjdqeid
between them ? Look at the cases where the
Court had pronounced its judgment on constitu
tional questions. If any question wak more po
litical/than .another it v.as ono arising under a
treaty, because’ it involved our relations with
foreign powers; but tho Court had entertained
jurisdiction in’many cases under treaties." Son's
to the eipt)argo, a question which convulsed the
Union, and'upon w filch a’ portion of the country
was almost ready to gp jnto insurrection, ao of
tho .power to pass bankrupt laws, go of the
great commercial question, dopided in Gibborjs
vs. Ogdon. So in the Case of the United States
Bank. That was a political question upon which
two or threa Presidential elections turned ; but
the Couit inquired into and decided upon tho
question of its constitutionality.
And here lie wished to notice a suggestion of the
commifted; it prohibited-CoulFress from pa,sins |
•' • lav. ■. nr . .ns i in ri il
iiiry, hr from lakimr away life, iioerty, or property
Bout due procete of law. These were ati State
s,;exerois.e<l by the pooule of the several States
dairies; b
A Duel and its Consequences.—Tlie
Havana correspondent of the New York
Tunes relates the following :
An amusing duel took place yesterday
about five miles from the city. It originated
in a remark made by n man to liis friend on
seeing a lady coming out of church. The
Jody was unknown to the person making tlio
remark, but happened to be tlie other’s wife.
A slap in the face was tlie consequence, and
a challenge came s6on after. This was ac
cepted, and the seconds selected a place.—
Tho wife got wind of the affair and imme
diately took steps to prevent tho dreadful
catastrophe. Her first thought was to notify
the police, but that might have given her
husband the reputation of a coward, and she
took a better method by going to the house
of the other party, where she met his wife,
and a plan was soon concocted between the
feminines. tgrpeeoilUiJinij . ■■j'.x ot <1
In tbe morning both husbands got up
early; wives ditto. Husband^ took carriages,
nnd their wives—one armed with five child
ren and the other with three—took other
vehicles in waiting. jAVTien tlie duellists ar
rived at the spot they were somewhat aston
ished on seeing the other two carriages drive
up with their passengers, who coolly in
formed the men that they also had come to
fight, so as to make it a complete family
quarrel, each at the same time producing an
empty purse and a package of baby linen as
their arms and munitions of war. The little
ones had pop-guns and fire-crackers, and soon
some indulged in a cry. It is useless to add
that the bloodthirsty Benedicts made peace
on the spot, and returned to Havana, in
company with their seconds, to celebrate
tbe affair oyer a champagne dinner.
The Imi'Eacument Investigation.—The
Washington correspondent of the New York
Times writes under date 1st inst;
The Judiciary Committee of the House, which
is conducting the inipeachmert investigation, was
to have resumed their labors to-day, hut only three
members made their appearance, viz.: Judge Law
rence, of Ohio; Mr. Eldridge, of WiscoBsin, and
Mr. Marshall, of Illinois. The two former arrived
tills morning. Mr. Marshall, has been in the city
since the adjournment of Congress, having been
seriously ill, but is now quite fully recovered.—
Messrs. Wilson, Boutwcll and Woodbridge, of
the committee, will be here in the morning. Sev
eral witnesses from tlie 8outh have also arrived,
among whom are George A. Trcnholm and his
son, W. L. Trenholm, of Charleston. The first
named gentleman was Secretary ot the Confeder
ate Treasury at one time, and his firm was largely
engaged in blockade running. He has been par
doned by the President, and the Committee pro
pose to ascertain the extent of his complicity
with tlie rebellion. The first session will hardly
be held before Friday.
stitution
was for himself a 6r<arc«- oi-iy ..... ,..
UU learned coUca^ue, (Mr. SlwrK^j) so lwift'ttitt
honored, phiuf Justice ot Mississippi, aud who
had devoted liis life to the defence of tlie Union
and the Constitution—who, intheheartol the re
bellion, risked his life day after day iu defence of
these great principles—had insisted upon his (Mr.
Walker’s) addressing the court.
This case eaine up on a motion to dismiss lor
want of jurisdiction. Such a motion, if it can be
entertained at all, can only be regarded in the na
ture of a general demurrer, not in this case to the
lurries, but for want ot power ou the partot the
court to inquire into the questions involved in the
controversy. Such a motion admitted all the tacts
stated in the bill, and also admitted all the infer
ences fairly doducihle lrom those facts in their
strongest application to the case, and simply in
sisted that admitting these facts and these necos-'
sary inferences from them to be true, tho court
cannot grant relief.
It was said that this was a political question.—
There should be no confusion ot teems hero.. What
is the difference between a political and a judicial
or constitutional question when an act of Congress
is in controversy.? There is .no difference, what
ever. To say that the court will not inquire into
this east; because the act of Cotigress wuich it is
called upon to examine involves an exercise of po
litical power Is to admit that Congress bad power
to pass the act, and ttiat therefore it was a consti
tutional law. When the learned Attorney General
addressed tlie court iu opposilimrto tbe jurisdic
tion upon that ground, he still presented a consti
tutional qnestion. llad Concress the political
power to pass the act ? Was tlie discretion vested
in them by the Constitution so comprehensive that
it was beyond the inquiring power of the judicial
department ? That is only another form of saying
that it is a constitutional law; because it Congress
had the political power to pass it, the act is con
stitutional.
What were tho political questions into which
Courts could not examine ? Are they rases of laws
passed by Congress? Beginning with tho first
case in Dallas down fo the last reported decisions
at this term, he challenged the Attorney General to
produce a single case where, when a law of Con
gress was presented to the Court on the one side
aud the Constitution on the other, the Court did
not consider it its duty to inquire into tbe con.-ti-
rationality of the law. Political acts which the ! edy. aud there was never a more powerful argument
riim-ri i.t de- in favor of secession and revolution. A -(Treat argu-
Conrts cannot inquire into wittrL ot a Qlffcri nt oe j )n( , ut nKa ; nst 3( .cession had alwaj-s been that tho Con
scription. When, sometime after the battle ot San | stitution had created an umpire to interpret all tho
Jacinto, the President acknowledged the tn,.epe’i- : rcS crved rights of the States, and pronounce judg*
dence ot Texas, which was an executive act, the nient for or agaiust them. When the.people of the
Attorney General, who, In commenting on the case
of Osborne vs. The Bank of tho United State#, had
spoken of it as a private corporation. The Court
decided.that it was a public corporation, and that
it was only Constitutional as - uscal agent of the
Government.. The. Court : firmed tlie power of
the Federal Government to establish such a fiscal
agency, and the right io preserve it from hostile
State legislation by the remedial writ of injunc
tion. bo with the question ot tariff; and here the
Attorney General stood on the same platform with
tbenuilitleraol At that time the duties
were not paid in cash, but were fOeured by bunds;
and Mr. Webste?; Mr. Clay, General Jackson, and
the eiitirffUniou party called upon South Carolina,
who m*A.declared the tariff law to bo cueousutu-
OOHaJ, to nring that qut stitra before ilio Supreme
Court. He? answer was tuoidenttcai position now
assumed, that ilw power G>pa=*>.a tariff was a
political question into which, thu judicial 'tribunal*
could not inquire; and that little party made ran-
tldefforts to secure the repeat of Lwenty-tULli
section of the Jueiclary Act of IJSSi which, gave tk >
right to bring before this Couit the final decisions
of Uiohiglicsi Court of a State incases involving,
the conslruetiiiu oftholawsj 'trunks, and Consti
tution of the United States. So ig the Milligan
ease, deeded at the present fertu. The-.question
was a political ono 1 , growing out of the existence
of the rebellion;' and yet every member of the
Court exercised jurisdiction. ‘ The tent-oath cases
also presentd i: political question applicable to
the rtbelllonjand yet both the ipajority and minor
ity opinions admitted the jurisdiction of flic Court
Tho dissenting opiuion in the Milligan c-ase ad
mitted that martial law could not be proclaimed
in time of; peace, and held that the Court could
inquire whet her peaceexisted or not. Do Congress
in the acts before the court venture to declare'that
rebellion imw exhta? Iu one oi their.latest acts
they speak of “theStates lately iu rebellion ” In
the so-called reconstruction acts they use the con-
stituribsal uiisnoun-.r “rebel States,’’ as if a btate
could rebel, as if a State could ,be a traitor, aud
tried aud convicted before the courts! The ground
on which liirseacis ivere passed was, not that any
rebellion existed, but because, us was alleged,there
was no lawful government iu these States adequate
to the protecijou ol'life, liberty and property.—
Upon the s#me haste, a eiulilar law might be passed
with regard to Maryland or Connecticut, nud, in
deed.every State of the Union. This was a mere
assumption, and In violation of established facte.
But the Attorney General had specially insisted
that the Court could not take jurisdiction of this case
because no title to land and no money'question was
involved. In response to this, attention was cubed
to the fact that the bill referred to the ordinance of
1787, the compact with Georgia of 18U2, the original
constitution of Mississippi of 1817, and the aot of ad
mission, under which vast grants of. public land were
made to that State, and it was secured a perpetual
right as a State, not as a torritory or province, to five
ger cent.,of the i proceeds of the public lands within
and .
ship and lau_,--_ ](■(■■■■■■■■_ . -
however, was a narrow view or the question. The
mere settlement of matters involving land or money
was not the reason which induced the framers of the
Constitution to give this Court original jurisdiction in
all cases wherea State should be a party. That juris
diction was granted to secure peace and harmony-
peace abroad and harmony between the States at home
—not as to mere questions of titles ton tract of laud ora
sum of money, butas to ull the great questions which,
involve the constitutionality of laws of Congress, the
construction of the Constitution, or the interpreta
tion of treaties. If tho States did uot create this tri
bunal as its ultimate arbiter of such questions, it was
created in vain and the States were lelt without rem-
within their boundaries; but they were all swept
»way. He had traveled through EgypLS.vriu.T’ur-
n ' turkey in Europe, and thousands of miles
sufch despotism in
_j«ia, as that which
. They ail hi>d courts of
. Y 1 an “ allowed a hearing and an op-
PortunTlJr of de.encc: the sword Was not the only ar
biter; but hcrqan nct-of Congress swept ten States
reduced them to worsettmn territo
rial bondage, and subjected every one of their ten
, millions of paiiplc, ofall jges, sexes and eotors, to the
Will of p( military eomraandcr. History was
full or examples not only of physical epidemics, but
°r moral epidemic*, when, lor snort periods of time,
vast bodies of people were infected, as if with mad
ness. to perform deeds from which, on the sober, sec
ond thought, they would shrink back with horror and
dismay. Wo wore now- Suffering from one of these
epidemic*. .
Although all the-sacred rights which lie nt tlie i
foundation of public liberty—for which Sydney per
ished and Hnmpdcn bled, and bur patriot forefathers
poured but their blood profusely in the war of the
“evolution—werepitotee.edby tho Constitution,
d'Me
cowonld tlwecr .
uii lie; Ian#, put t! Wll L. •
ed to taeiii only the go-.'
Att-.rt;- > ;i1 would
jHUpnf won^mniQ] : t.',
law, and whose arguments hud L 1
people, and was, therefor* , v n Irticr.i, i
involved the power to expel
if they are mere conquered fbtcWn,."?»> Vi 1
that tlmy w?re ntehtt'ie^
o K fT n b &;,b T ^L w «i h - e ^Fo^<i
the people to bo toTdTthat Congress would take thenf, nglit.f of con-pit" t followed Umsifinff 6 C| k "
away, and that this Court was powerless to interfere,
polities! nghfs? M'nt fhe only
b^caliae* they were
remedy through tbo ballot-.box? Tho elaborate
gnments rn the Federalist andtho'grbat dlScftsilOm,
the various State convention* show that ou; fathers
well knew that all people were subject tb epidemic
movements, arising out of great convulsions, in' which
they might do acts that in cooler moments they would
deeply regret; and tho framers, of the Constitution
inserted guaranties to- guard against such an emer
gency as the present; when the popular' mind is
lashed into a tempest, and the, waves of the great
oceah of civil strife aro still throwing their tumultu
ous surges upon our shores. ’If the people are to de
cide such questions, where are we to look for the will
of the people ? Congie*3 are but the servants and
agents of tho people. The Constitution was the unan
imous voice of the people of all the States, and that
was the will which should govern. One of the objects
of the Constitution was to protect minorities—miuor-
ities of Statcsand minorities of tho people.' The ma
jority could protect themselves—the power or legisla
tion was in their hands.
Hut it had been sapl that these States hail faded
out of existence. The act of Congress, although it
call# them “rebel.States,” treat* them ns though they
were uot States of tho Union. It requires them tb
insert certain clauses in their State constitutions
grautingnnd guaranteeing the right of suffrage to a
portion of thcirinhabitants.andtt erflnmands them to
give their assent to certain amendments of th« Ooc-
jHtnfibn v Of the United States. Can Congress frame a
constitution for a State?. Can Congress-insert any
Has Congresra
hb she
provision in a State constitution? .
rightto dictateto thbt peopio of a State who shall be
entitled to tho light of suffrage under.,their constitu
tion ? Although in some respebts the act tegisInUM
for these States as if they wepe not Statfis, jt yet ad
mits them to bo States, because it forbids the admis
sion of their representatives until the last_‘eonftitq-
tioual amendment is ratified by a constitutional ma
jority. If they were not.State J, thereiwere but twen
ty-six States when tho act was passed, aud more than
three-fourths of those twenty-six States had ratified
the constitutional amendment: and yet Copprcss ad
mitted fhat the admendment had not been ratified by
the constitutional number ot States requisite for that
purpose, and required the States to ratify it beffirC
their roadmission into tho Union, and excluded them
until it should have received the ratification of a suf
ficient number of States to give it efficacy.
Hut it was said that tiieruhnd been n great rebellion
in these States, by which the regular operation of the
lawn and the regulnr State authorin’shad been sus
pended. True: but what then? If the ordinance oT
secession and tho constitutions framed during the re
bellion were mere nullities, they still remained States
*f tho Union. Then what was the cpnsuquefcc when
the insurgent power was removed ? If a British army
had seized and held Louisinnafor years, suspended
all the operations of the courts and public functioua- he hud said before in j»ver of the suncoovirUi'l
rics so that there was no one to reinaugurate State State ♦’»’nullify secede. J*”,'??'!
’overnment there, would Louisiana thereby cease to
uld the people, on tdo removal of the
of the South, who are now in
eating tlie enforcement of &b]» qS'WMn
been emphatically decided ^ tTk
tile prize eases decided at thefwA?* HSc
which it was hold that Cong^B b f ter '-f h
ciaro war against a State, and !ii*° tew
suppression of the rebellion
of the aets of Congress of 17'.IS and I'D.-
war at all, in the true constitution,!7“ It
though called a warin (he VQplSas
tho Constitutional sense of the term 8Cn !?- A»
Congress declared war. Congress
clarc war against a State, and the ..fover"
neomst the rebels in arms was mcft8K ,J tk ol
of a rebellion under the statutes •hr le * 0 ?i>n
quest and ''conquered territory”
in csSes where there was war in the fra • *1;
MdConstitutionalsense, in this c '““'huS'
ifnion?" “ ”°“ U ■« 38?&S5
of peace prevail, and that ail th 0 !?m p * a "' iff i
disappear when there js S
now l Has Congress ventured todibfcTVk /
war—f'.mgnoren-il-vsistiffg-*
preclude judicial inquiry into th»t 1 ‘’O
sorting that the rebellion is eUil
all. It simply.says that therein??'' 1 --’’ i
ment in these States, because Lll? --
trine, their people area Conqu^™^it
rights of.conquest, including
necessary consequence. C<merc.ra„H 0C -
that tho rebellion still mSafiLth^r b, " a - v-
must be looked into. Tho Proft
thority given him by the ar ts *' u , sS '• •
laws passed dun*, the
peace prevails throughout tli<!°?-' ■ d<*lani
ftocument/i.roclaimcJby the iUliL 0 ",'’
der-uirchici <>i the army „77.1r ent ' fitf u
lly the Court. Fur two years tl?'
solitary act of war, or a S&zJ tfS
the Union. The armies im „i '®- fv...
have disbanded The 6
again in triumph over eti rv «... ' n l t ns n •
plete, absolute, nnaniiao" mbml C ’
of each Statu have reeSSJhSSstaS" 1 ' T! >' r*
obedience to the Constitution y.' c * 01 «i«<-
roprespntative# to both UouZ'ofk y h:1Vl ’"
There is not even a pretenef-nr ,1 ^ v -
Imitations <*f the President to iinvo wii™' ! r
that there is now or ba,- k";.'" havL twee ca)Bt£
hi
limits, which hail not yet been all disposed of,
was ah
granted school sections in every town
as for the, seat of government. That,
Glory for Greeley. He ran behind
bis whole ticket, even Dunganne, in bis own
county of Westchester.
Tbe first train crossed the Mississippi on the
new railroad bridge, at 8t. Anthony, on the 30th
alt.
Court declared that that waa a political power
vested iu the President, or, in other words, a Con-
siHution.il power vested iii tho President, tor
neither Congress nor the Pre-ident, under the
name of political powers, possesses any other than
Constitutional powers. It being a political, and,
therefore, a Constitutional power vested in the
President, the Court were precluded from nil in
quiry into the propriety of that executive act. So,
also, in the case ot Luther vg. Borden, from Rhode
island, an attempt wus made, by insurrection, to
overthrow the charter government of Rhode Island
and inaugurate a new popular government. This
was resisted by the charter goveri raent, and re
sisted fuccesstully. It was resisted in the judicial
forum, tbe Court# sustaining the legality oi the
charter government. It was resisted successfully
iu arms, and acknowledged by the President, and
aid given in .its support.. That,' tbe Court held,
presented a political question between the two
governments which tlie judiciary could not in
quire into. 1
None of these cases were aqta oi Congress, aud
in numerous cases tbe court bud passed upon the
constitutionality of such acts. If the court had .a
right to make the inquiry aud to prononuce iu fa
vor oi tie constitutionality of tlie law, It had the
same power to Inquire and to prononneo against
the cocstitutionality ora law; because the quest ion
ot jurisdiction could not >’cperid upon the ulti
mata results of the final hearing.
Here he felt it proper to say a word in vindica
tion of the President, who hud beeu greatly cen
sured, especially by a large portion ot the seces-
*;on press of the8outh, for carding into execution
an act which he had vetoed upon tho ground that
it was nnconstitutional. When a bill is presented
to tbe President he is bound to inquire into Its
constitutionality before he gives hi appro+*l; he
is then co operating with the legislative depart
ment of the Government. If he deellBes. to sign
it, and it is passed by a two-thirds majority of Con
gress, it is as moeli an act of c ongit-ss as if it bad
received the sanction of tbe President: aud it ne
cessarily followed that under :the obligation im
posed upon him by the Constitution to 6C(s that
tlie laws are faitbtuily executed, he is as much
bound to execute that act as one which met,his
fullest approval. Why? Because the President
possessed no judicial power; cor.dld Ciqigrrs*.—
if Congress were to attempt Id convert HoeJI into
a judicial body and tho two Houses MbNfld go iuto
Committee ot tho Whole to inquire into tho con
stitutionality of a particular act, its resolution ou
that subject would be a mere nullity,' because it
' possessed legislative power aud uot cxccnrive or
Judicial power. So the President had no right to
judge ofthe constitutionalltyof unact of Congress
after it became a law, that being a judicial ques
tion. He has no discretion except to execute the
act, and that important fact goes to the very gi9t
of tlie matter. When an application is mafie lor a
mand'mini to compel the pcrtormaucc of an act. or
an injunction to restrain the execution of an ille
gal act, it depends upon whether the executive
officers have a discretion in either'case to judge
ofthe law, and a right to execute it or not at their
pleasure.
If they have no discretion, and tbe law positive
ly commands the execution of a particular ret,
the remedy is by mandamus to act aflirmativcly;
if the law forbids peremptorily tho execution of
no act, then, where it can be made a judicial ques
tion, the appeal is to the judicial tribunals, and
especially where the question is a constitutional
one. In this case the President has no discretion
except to execute the law; the subordinate officers
who are obeying his commands have no discretion
except to carry his orders into effect; and there
is no distinction in 6ueh a case between aa execu
tive and a ministerial duty. A ministerial Is mere
ly a branch of tlie executive duty, the only differ
ence being that a ministerial diity is where the
officer lias no discretion but to perform tho act.—
For example: when an account is presented to
one of the accounting officers ot tho Treasury, or
comes up by appeal to the head ofthe Department,
the duty of deciding upon thatuccouut is not min
isterial, because judgment and discretion are to he
exercised, and therefore a court in such a case
will not interfere either by inandamiu or injunc
tion. But when the officer lies no discretion, as in
the case of Marbury vs. Madison, 1 Crunch, in the
case ot Kendall, 12th Peters, and others that have
been mentioned, where the law is positive and
peremptory, and an officer is directed to do or uot
do a particular act, it is » settled principle In this
country, aud in that front which * e derive oHr
jurisprudence, that the courts will issue & manda
mus to compcithe performance of tho act requir
ed bylaw, or an injunction to restrain the act for
bidden by law, because in such cases the law lias
left no discretion, but it is the duty of the officer
to obey it
In tho present instance the President and
those acting in obedience to his orders have no
discretion but to execute this law; but if tho law
be unconstitutional, is there no power to vindi
cate the Constitution ? Must it be disobeyed and
treated as a dead letter ? No. The Constitution
provides for that exact contingency by declar
ing that the Federal tribunals shall havo cogni
zance in all cases arising under the Constitution,
laws, and treaties of the United States, aud by
making tbe Supreme Court the final arbiter to
construe the Constitution and give it uniform ef
fect throughout the Uniou.and permanent effect
until its decree is reversed by the same tribunal.
When the President and his subordinates pro
ceed to execute a law which is deemed to be un
constitutional. tbe Constitution gives to citizens
_ and to the States, in the cases provided for by
i Constitution, the right to come into that tribunal
be a State; or could the pe . .
hostile force, come together and again piit the State
in operation? What was the difference between the
same results produced by ft foreign invasion or a do
mestic insurrection? Tho insurrection prevailed tor
a while. It nad no lawful, no cofistitunorial power.
The secession ordinances wcfe-merc.nullities. Tbe
pretended State functionaries during that time were
no functionaries at all. bechoso they hud not taken
the requisite oath to support the Federal Constitution,
and were engaged in a treasonable rebellion. When
the opposinffqnstacm
tion was
no State VPMMMHPPlIPWnmVPPmipHIVH
could reorganize government ? A case decided in ?d
Gailison us to the islnnd of. Castine, putting in force
the doctrine ofjposl limine, was precisely in point. Du
ring the war of 1812 Castine was held for years by the
British, and not a vestige of State or Federal author-
several States framed and ratified tho Constitution,
they reserved certain privileges and rights to them
selves. aud granted certain powers to the General Gov
ernment. Among the rights reserved to each Stiite was
the right to conic into thD Court and ask itsdeoision as
ihe ultimate ai Piter in all cues involving the con
struction ofthe Constitution, laws and treaties ofthe
United States. This doctrine was sanctioned by the
Wheeling bridge case, although the Attorney General
had referred to (hut case as showing that thejurisdic-,
tion was sustained becauseof the proprietary interest
of Pennsylvania in certain eauals and railroads. It
was true that allegation was made, but it was only
becauso of a technical point: but that decision sus
tained the doctrine t .at when u State earac into this
I'ourt as a snitor. sho had the rights as an individual
would have to remedial process.
The case of the controversy between Rhode Island
and Massaehusett* was perfectly decisive on the ques
tion of jurisdiction. That case did not involve the
title to nn aero of land or a dollar of money: nor did
tlie Constitution nay a word about boundary in giving
jurisdiction over case* between States. That was a
case of disputed sovereignty and jurisdiction over
five thousand people: and the Court entertained ju
risdiction because of the parties, ami pronounced de
finitive judgment. The decision in W oolsey vs. Dodge
(18tli Howard), which ought to be bound up with the
Constitution, reviewed the whole subject, and showed
conclusively that,this Court was tho ultimate arbiter
in all cases arising under tho United States Constitu
tion, laws or treaties.
In the case of corporations and franchises, a court of
equity interfered to protect the franchise itself, to
— ’ pthp
gov-
.■ . ■ —r ap
ply to pnblic as well as to private corporations? It
wasemployodinthooaseofOsbomiigainstagreatpnb- JB, I L
lio corporation, tho Bank ofthe United States, and has : under them: or, as
been applied in the case of city corporations, county i-otno together and organize a convention" which
corporation#, and other public corporations, admitted w ould either acknowicdi
in the decisions^ be exercising a portion of political
IB* right
cued to, protect the incorporated right of tho fran
chise. That question arose in the celebrated Dart-
io uth College case, where the original ehartcr vested
lu- ’idministrativo power of the corporation in eor-
t ii'i officers, and an act of tho Legislature of New
JI •• mpsklro undertook to change that organization,
qi -t. to take tho exercise of that exclusive power
under tho charter from those who were entitled to
r-iereisc it by its provisions, and ito vest it in part in
other functionaries. Mr. Webster, in that case, made
an 'unanswerable argument in favyr of the power to
protect the franchise, though the person claiming the
exercise of the^power had no money interest in the
matter: and the Court, in its.decision iu4th Wheat
on, sustained his doctrine, and in the decision in that
case, tho Court held that the right to administer the
franchiso of aeorporation was V founded on the same
basis as tho right of voting in public elections,” and
it was said t" be " a s.ic:ed light, ami w ill he teet
cd by the courts.”
The main ground which ushered in the American
revolution was the taking away of our charters; but
even in the mo-t arbitrary times tln-v scarce];.- ven
tured to lake them aw aj by legislative act, hut they
dragged Ma.-saehu-etls and other colonies to contest
the valid it;, of their chart < rs, mi the question of for-
feiture or non-forfeiture, before;the judicial tribunals
of England, where it was regarded us a judicial ques
tion. The right to vote in a private corporation was
a sacred right to be protected by tho judicial tribunals;
and the right to votc.in a city, county, or other pub
lic corporation exercising vast political powers was a
sacred right which tho courts would protect; and yet
was ho to bo told that the same right of an American
citizen, sacred by the Constitutiou—a right without
which liberty is a shadow ami self-government a pa
geant. a right secured by the first article of the Con
stitution—was to be frittered away so as not to be ca
llable of protection by judicial interference? Tho
right of suffrage, who should vote for members of
Congress and Presidential electors, was ono of the
great disputed and difficult questions presented to the
consideration of tho framers of the Constitution, nud
after much deliberation and great diversity of opin
ion,not being able to agree Upon any ono unilorm
rule applicable to every State, thev finally adopted
tho principle that each State should decide for itself
whoshould have the right to vote fpr members of tho
j'Opular branch of tho Plato Logi-lature, and that
whoever were thus permitted by tho Pt.-ito constitu
tions to voto lor member# of the popular branch ofthe
State Legislature should be the persons who should
be entrusted with the power of voting for members of
Congress aud electors of President, and. in fact, with
the e.irij ing >u ami .idm ini* taring of this • b.v-eminent.
These are tho men who carry on the Government
through every department. Even the SupremeCourt
represents them, and carries into effect tho powers
given by them.
This principle was incorporated in the Constitution
by the unanimous act of thirty-six States, for all the
Mates admitted since the Constitution was formed
assented to it; and when_ this right constituted tlie
very vital essence and being of the States, was he to
be told that this jiowrcr of each State to divide who
shall administer its affairs may be taken away by act
of Congress without any power on tlie part ol the
Court to interfere? Is not that a State right, or arc
there uo State rights? Are they obliterated? Have
the stars disappeared before the powerful effulgence
of the rising central ran. and faffed out of tho tiruia-
rnuit ? Are there any . < tutes still left? Have they
any right* ? Wlmt are those rights, and how are
they to bo exercised, and by whom are they to be
protected when assailed by unconstitutional legisla
tion? The Constitution makes an express reserva
tion to the Mates, or to tlie people, of rights and pow
ers not grantod. Aro there no reserved rights in a
State as a State? is uot the right ol each State, not
ing in its_ corporate capacity, in framing its State
constituuion and laws, distinctly reserved to declare
who shall exereiso tho elective franchise? And yet,
the act of t 'ongress here in question entirely subverted
the State systems on tiii-i subject, i t was un act with
out a parallel in history, extending martini law over
ten millions of people, loyal and disloyal, ofall races
and colors, vesting unlimited power in a military
satrap, submitting the glimmering sword and glitter
ing bayonet for the judicial tribunals, It lnystheaxe
to the elective franchise: it extends the right ofsuf-
frage t» threo or four millions of people excluded by
the State constitutions, and excludes tens of thou
sands by clas.ificntion who are entitled to it under
the State constitutions—the broadest bill of attain
der or of p^ins and penalties ever enacted.
It took away our rights reserved to the States af
States. Tho Constitution provided that no man
should be tried except in the State where ids offence
power there? Not at all; hut it eamc back by the
doctrine of tidkt fiihin*;"which is distinctly recognized
as a part of the municipal law aud the international
law ; and the moment fhe opposing force was re
moved, Castine was again apart of the State of Maine,
and the laws of Maine and of tho Union resumed
their full operation there. •»
So with these States; nil these acts being absolute
nullities, the pageant called the Confederate Govern
ment being removed, the secession eohvcnticlcs,
which were mere assemblages of traitors and insur
gents, without the least particle of legal or constitu
tional authority, with no legal right to disband the
old State governments, or withdraw the State from
the Union, or suspend the operation of the State or
Federal laws, having censed t* exist, w hen the op
posing force was removed by the doctrine of j/oet
limine, and the law of common senso and common
justice, did not the people ofthe State, and especially
the loyal j>eoj)lc—the liattallionsfrom Mississippi who
shed their blood in defence of the Constitution and
the Union, and the thousands from Virginia, Louisi
ana and other States, who marshalled under the stars
and stripes—become vested again with all the’ attri
butes of tho State? Were such people disfranchised,
with ail the rest; deprived of alllcgn! and constitu
tional rights: reduced to territorial pupilage and
military hqmlage; deprived of the right of suffrage,
of trial by jury, ana or nil the guarantees of the
Constitution ? Were there no people left when the
opposing, ‘illegal, treasonable power was removed, 1
who, without any aid from Congress or the President,
could exercise thfe sovereignty of the State ? Gov
ernments arc not sovereign: law-tnakors ;irc not
sovereign : tho sovereignty is vested in tlie people,
.-■'overeignty is- tho power that makes governments.
Did not the people constituting the sovereignty, ofthe
State Of Louisiana, except where it shonld conic in
conflict with the Federal Constitution, revertb^v the
mere operation of pod limine to tneir original rights,
which had barely, been suspended and not abrogated ;,
aud wore ti;ey. not authorized without the interven-
tWfiof Cotagres*or the President, or any other 'tri
bunal, to come together and put their government in
operation ? " !
Mississippi and each of these ten States bad a State
constitution recognized as republican and valid when
the rebellion broke out; and each BrhSMm M
whose validity was recognized by all tho departments
of this Government. Was that State constitution ab
rogated by an unsuccessful rebellion ? What dcstroy-
cd.it? The rebellion did not, becauso it was unsuc
cessful? The secession ordinance did not destroy ir,
!■ i-au-e that " a - a muv nullity. It seemed perl'- eti;'
clear, then, that the State constitution und laws
which prc-'cxistcd to the rebellion, and were ih con
formity to -tho -Federal Constitution. were
in full force, and just as binding after as
before the rebellion. Tha people might have acted
they had a right to do, they could
come together and organize a convention wi ‘
would cither acknowledge tho old constitution
Mississippi did in nearly every particular—and the
old .State laws, or might modify them, rs tho people
their constitu-
e Constitution
_ eonstitntion of Missis
sippi was abrogated and ceased,to operate, nt what
moment of time was if ? Was it when the ordinance
of secession: was framed ? Did that act of a conven
ticle of insurgent#, who had no legal or constitutional
power, abrogate* the lawful constitution of Missis
sippi? Was it abrogated by the insurgent move
ments? Did an unsnccessfnl war—a war to destroy
tho State constitution, a war to destroy tho Federal
Constitution, a treasonable war fo subvert the Union I
and de-troy-the Government, and, indeed; obliterate ; fro
(ho'
wwcf
Mississippi? .
Ifnoithertho secession ordinance nor tbe unsuc
cessful rebellion destroyed that,constitution, isit not
still in force, except so far as it was modified in 18G5?
It was clear that the people, in tho cxcrciso of their
sovereign power, had a right to come together in 18(55
to modify their constitution: but if there was any.
thing irregular in that, tho old constitution remained
in force, which was recognized as valid and Republi
can. Congress had no power to destroy it. Congress
had no power to treat as nullities State con-titutions
which had been accepted and acted upon for years.
If Congress can dictate certain provisions to be in
corporated into a State Constitution, they can frame
an entirq constitution for a State and demand its
adoption, on penalty of being taxed forever without
representation; and if they may suspend tlie rights of
li State for a year, they may suspend them forever.—
The question of eon-t itutional power does not depend
upon the number of months or years within which the
act is to operate.. If .Congress had power to declare
that these arc not States, and that there arc no law
ful -State governments there, they may keep them in
territorial pupilage until centuries shall have rolled
away and eternity grow pray with age.
But the learned Attorney General has said that the
danger is merely imaginary, for these events may
never occur: that tha nord of Damocles is suspend-:
ed Over us, but the hair by which it is held may never
break ; that although absolute power is given to the
military commanders to destroy the State govern
ments, and put out of office tho Governor and judges,
and prevent tho election of a new State Le.-islaturc,
and to try men. not by juries under tho Constitution,
but under military law, yet that these things never
will be done. The courts exercise by the great reme
dial writ of injunction the power to prevent the exe
cution of such aets. It is fo tim- t, lieeau-e tlie com
plainant fears that an unlawful act will be carried into
effect. In tho language of the books, it is because the
eompluinant is threatened with the performance of an
illegal act. It U for that very reason that a court in-
terferesia advance of tho execution of tho law, be
cause it would be too into when tho acts aro accom
plished and these officers were all disbanded. The
bill of complaint in this ease sets forth that we are
not only iu danger ofthe execution of those laws,
hut that we arc threatened with it directly by the
President, verbally and in official aets; that the Sec
retary of War and the General in command have is
sued orders to carry it into olVect, ami.that it certain
ly will be carried into effect unless this court inter-
tnan mere ever was befiife rinra,'i.T’.7 * 1| »I»I(sq
founded. We have no
whisky insurrection. Wchav„rio,i‘
midable-Olinstend war, which o'- 1 Cl ' ;, °
tfom 1803 to 18ti>—n«t # rebel!i'.fnla
men or eonnties. but a State mi mp
onn rebel, headed by tb,> (Wn r
ture of the Stafe, I believe,
which the State troops were xn ’-
State decree against a judicial deerra ' ,1°
tlw Union, and- WhiiS uSS^S^®««ni
That was tile very rebellion whichlalT^i.^’ 11 '"-
of the act. of 1897. J £lc “ w <« the paJ
who loved tho whole human rim
great men, .committed s,. m . trrorA.*
greatmen; (a* one of the riUtttKiidofYofiVj
field,! was great enough to aekaowiMmiwif“l
calledby his aett during that ptrmUvrn- I
- - —| iforo-U! /fiver of the suppofXritL
■ pHliTy .w secede. Jeffcr'on fS?
under tho act of 1795. which meiely suthora',
eULiigoutof tlicnii.itiiiM execute-the law!
Union and t.vsnppress insurrection, tbemii: .. I
against .him: and he sent aae.«ya tatvSlI
questing the passage' ofthe a-t ntlm, whicU'.J
first time, in addition to, the militia. ..ik-Jl
use ot the army and navy of the United SuiteL
it was through that ■ instrnmentality, acd iv Vl
trivauce of the marshal and sheriti, that a'. u
-Although that greatJkateti.j:,
mitted that folly, it has Been redeemed fi ru . v
thousand virtuous imd patriotic deeds.
Bat tho Legislature ol Fennsylvana theiudj
stantially the same ground in BOmerspnS
South Carolina has since done, and d I
tribunal could not be trusted with the dc "T
these great political questions, and esikd
sister iftutes, by an amendment ofthetw^L
to ertate some orher tribunal, composed of»-J
tative#, frqut oil the states, to wimnmufJ
questions involving political consequence!■ 1
referred-.- Virginia, acting iu obedience to tiscl
Views of Jefferson and Madison, pasted rtclc
1810 in opposition to tho resolutions of fnsr.
ngaiqst any amendment ofthe Cuietits,; ;VL
respect, and declaring that the Supreme Cm J
the arbiter of pH constitutional que»ti»u,J
they involved political consequences orn<i;aii
no tribunal so safa as that could be omnia:
Government; and every State, exesptPauj*
went with Virginia on that occasion.
■ . I ngntMitra
funs:i:utii'ii -h,- cai ini" I .- I ' I
pact between the United States and Georfir.l
Rlqw reaffirmed and. extended taffwiM
the privileges of the ordinance of 1787, serapt
r-rrifr the richt if trial by jury,
great rights guaranteed in the .Ofakintal
making to her certain grants Of public lei -r
value. This arrangement was declared toi,.;
mental law and a compact unalterable rik
consent of both parties.
Too Court h«s again':and, again nwqpiinitej
ing force of tlie prdinance ofl7S7, nor mn-v
but as a lUndsmental compact between 0*
ment of tho United States and the people oftizsl
ndmitte-r into the Unibn trader that cnn?el
oompact was of it-flf uConolnsiveurgunKiitisw
pretended right of secession. If It wa- > list:;
pact, having all tlie force and power of smri
the Constitution, b; .wfiat.po rewr anttnrija
now be disregarded! 1 And yef vseh andemjo*
provis ons is,swept away hjr the net ot Cave.-,
effdetnafijr m ifth'at *et had contained »efi-
many words repealing lfie ordinance und fu g
1,57.
Und r the treaty with Spain ofiTSS, Tt
claimed Njifi-hez, and Mississippi a» a porn s
Spanish territory accepted their possetMed?
Spanish forces, and in organized,md pa: u
eration their *erritorial government. IolSfffl
P I I no wit her.
the fact that Congress, exercising its pethiet
had decided in 17u8 that .M i-sts>ij>pi Vesnjnn
territory ceded by Spain, and Ttpo® 'fit# b* ,! * 1
opiuion had orzanizied and kept in operation for ■
ratfnat mo: 11 goreraMdffagMtewSrMi
Georgia, this Court decided naaoupoujlj', wffh tn
gle dissent of Mr. Justice Johnson as to the pe
juris.i that n T - .
the thirty-first paral cl was within the i>® l “ 1
State ofGeOrqfia. and thatthe United States hac a
to it until Gemxia eedpd itinlstfi !
As regards the three lower counties of M;
old Mate taws, or ungnnmouny tneni,
of every State liavo a right to modify t
tion* and laws in subordination to the
of the United States. If the eonstitnt
principle o! M-if-Z'.i men : t hr. 'Unll'C.lt tin-
■Iff—destroy the Stato constitution and laws of
eatv, a
till6d to all tlie rights aDd privileges secniw
treaty, many of which rights were e carij Hi-
this legislation, it emliraeed no' ciclrtr.stp»
Mie.-iss-ppi north of the Jls: para’ic!.
(Jeorgia ar.d protected by the compacts ofla- -
lint also embraced the three hwt?
-. ; < -f M. xn >i. -,u,i ,-d ty the :r-.
The Attorney General placed muchrtis*”'
decision iu the cate of the Chereki t X»c {r
Mate of Georgm. (5th Peters.) The Court •
that the Cherokee Nntioa was not a fomfti r
sense ofthe Constitution.: wa» not a out*
ene in the courts of the Untied S atet, Mi*
that the Coutt had no iurisdietion tor <- cn L
proper patty in tt.c | .... A bojrond tint ".'1
dictum; bnt what was that Case? It ™ ‘‘jl
n-.inust am ms ot tho >:atc ■ tic :
restrain the’S stt as a State In Its
frr m tho execution ot its Utws,a-nd at
e • >.a - ...iii.., i-xccu ;.g then bf-WSkiq
presenr mfl wi# fll#d' aga'nst the CdtCtrmej
i lilted Mates to nstrain it as n . ' .
ecutihg by force the laws in question, tba* ”
some analogy.- hUgJBfs BDVa hill sfSiMfj-e
meut.; itis a bill to restrain subO'dfiuj* '
careful perusal of the decision ih Msragyj*-
n : U -... .1 !.'. : su -il ti I...1 was saSttiMw^ra j*
tliitw;! :- • ,Ion- ;t tiff, ur' doesWtrSre I
i r'—- Im K ah I he believed no out
MM inltlw*>iiliiHiTiwi«: limnii‘t‘ff._™ijn)iii'
of these Inws; bnt although their ^ et g
is su - stantially conceded, the queh?* “
he used the word in-the same f 1 *.*!, trt»W
which the Attorney General spol;e
as “rcanffalous.” The cotirt is nskM " A:
up- ffeten. ■ tiie eoiawfathMrfr” 1 ^
w-n.-h von are sworn to defen-ir ’• -
u n a it- im eitaMteVk
that t!ie Constituticii i- v: :... ,1.
see that ten States and ten mil S .
deprived of all theirrigbts trader t"® AV :
that it is repealed eo br as they are
of the-e ten States united ia I'ornuoS
after they had joined in carrying tll0 .V” u -
fully through tho war of the Keroluuoa
Virginia, gav. us the great, tie wj**
whom, under Providence, prtl’JP*™
would never have lieen achieveu.
rying us thron-li the second waM ^1
raising tho country t > a pinnacle r <i
unknown in the history of the
of them did err recently i Did not ** ..niff*:
in Shay’s rebelliftn * Did not PentPj'^^jjtji.:
“whisky insurrection.” and the snore
stead’s rebellion! Did not iscw Eog f ^jq
assembled a band of traitors at_Haru; Ufj
That Is the very ease in which a court of equity in
terferes in advance to prevent the occurrence of evD.
These generals are not only rognlating the right of
suffrage, but they arc inlerlering with the liberty of
thopre.-s; they aro declaring that it governors or in
dividuals expressed certain opinions they will be
turned out of office and puni-hed. They have issued
orders disbanding some of the courts, and 'threaten
ing to disband them all in a certain contingency.—
They have changed the entire penal code of several
ofthe States ot this Union. They have mado that a
crijite which was not & crime before, by mernmijitary
edicts; au inot only that, but they have changed the
mode of punishment ordained by State laws, and they
have substituted by military orders an entirely differ-
'ent punishment from that ordained by :hc State I
laws. And yet we are told that these are imaginary]
dangers,and that tho ovils we apprehend may uever
occur. If, but one short year ago, any man had even
imagined that such an act as this could bo enacted
by Congress; that martial taw. to tho exclusion of
all civil law and constitutional law, could b s inaugu
rated by military force, and ifhohad venturedto pre
dict that such would have been tho progress of the
epidemic madness which is now surging over the
country, he would have been thought almost fit for
an asylum which, perhaps, ought not to be men
tioned in this Court.
But it has been said that these States are mere con
quered province-; that the war was in the □ iture ufa
foreign war. and that the people of the Southern
States stand in precisely the same attitude a« the peo-.
great errors, have they now no rig—...,-ffiD-!!
peopleamong them, numbered by l l V' ' v, ; M-.l
of ttiousanffs, wtio ri.-ked t.'iew A'c- ■ __ - J
of the rebellion, no rights? Ar#th°*^P.
withstanding ail Uieir faults and c?rcirs.
a common country,destined t0 ,
ourselves, to hare noprotee:wxiromi -
those of them who went on: did J* yA-joU
Mr. Calhoun and his fellows, yd
right to decide upon questions - j
wlien thev have come back anea-se.- - t
that secession i- a mere nuffit;y, a i ■ i 1
courts* tho arbiter created t-y ’• 1
they to be told that they have no cv--;;.' ;
or at least none which will be
that perhaps you mightredress t l’r,jfa tt#!* , »-
dividual who would bring a, 5Ul! ir;o t ‘
but when this military law h*» , oa ititt
each and every one of these tui ' j oeir ?
governments shall be ov erlh ^,T r »tff-.'ivtoA’ i
dtteed to military bondage, you wtt“ • ffi , ;
“We cannot help von; mere ,-d .
these are great evils: we see pis
prived of your constitutional^ tajt-™^ gjs
If, iD-tead of the fri
Union, hs the country knows >
worst enomics,representing
fill 13 *** ! . ■ a
1 “ ... I
ting here to decide upon the desti . ^
and t«* pronounce upon the P er P'-‘ t , -j c: • I
lion aud the Union, wh^t more .bq:I
nouuced by this Court than to d S‘R nI niE ”
poaceful remedy for ten States an R
pie within the limits of this great b I
As Mr. Walker’s argument consam^ ‘ . ^
* till near the close c
a halt, reaehii
f thfl
Geo* r%4
Court decided to hear the Attorney
iug argument on Monday next.
An Ohio editor has
narfc from the sap ot t“ ,, s u^
sugar, rnaac
tree. He saj’sit is superior
to ffisp 1