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About Weekly constitutionalist. (Augusta, Ga.) 185?-1877 | View Entire Issue (May 15, 1867)
THE WEEKLY CONSTITUTIONALIST WEDNESDAY MORNING, 15,18 W. TO OUE SUBORIBERS. Thb Wbekly Constitutionalist will here after be mailed on Tuesday instead of\JVednes day morning. We make this change to accom modate many subscribers. It is out aimqmd purpose to make the paper a first class news add family journal, and we confidently hope that the influence oi our subscribers will be exerted to aid us in doing so by extending its circu lation. - [From the National Intelligencer. u. S. SUPREME COURT. GEORGIA AND MISSISSIPPI INJUNCTION * jQASfi. * Argument of Hon. Robert J. Walker. The great argument was continued yesterday before the Supreme Court, on the application by Georgia and Mississippi for an injunction against the agents engaged in enforcing the military reconstruction bills oi Congress. The court room was not,'a* much crowded as on, the previous day, but outside the bar the seats were all taken, and the space around the door was filled with those'"standing up. Amongst the audience we noted Senator Patterson, ex-. Senator McDougail, the. members of thcJu diciary Committee, Wilson, Marshall, and Eldridge; Judge Underwood, Hon. Joshua Hill, Hou. Joseph Segar, and a number of gen tlemen of the legal profession. Mr. Walker began his argument at a quarter after eleven. — He spoke until twenty-five minutes of three, and commanded the profound attention of all present. He spoke as follows: Mr. Walker said that he never rose to address any tribunal with so deep aT sense of the sol emnity of the occasion, auif of the momentous issues involved iu the controversy. The cause ol the Constitution of the American Govern ment, and of self-government throughout the world, was now on trial —he believed, upon its final trial—and it was now to be decided for this country, for posterity, and “for all the • world, whether written constitutions arc mere jKircbmont scrolls; whether they are words written* upon the sa ads,, to be swept away by the first angry surge of popular passions which may roll over them; whether they can be. evaded by technical issues or pleas of want of jurisdiction, or whether they furnish that reme dial process which will enable the judicial tri bunals to carry them iuto effect. It is a ques tion whether it is practicable to divide the Gov ernment into three separate departments, or whether the Legislative Department is to be omnipotent, and whether by some power •laimed to be political, or some absence of au thority on the part of the judicial tribunals lo inquire into the controversy, the Constitution can be maintained and vindicated. It was for himself a source of profound regret that his learned colleague (Mr. Sharkey), so long the honored Chief Justice of Mississippi, and who had devoted his life to the defense of the Union and the Constitution—who, in the heart of the rebellion, risked his fife day after day in de fense of these great principles—had insisted upon his (Mr. Walker’s) addressing the court. This ease came up on a motion to dismiss for want of jurisdiction. Buch a motion, if it cqn be entertained at all, can only be regarded in the nature of it general demurrer, not in tlfis case to the parties, but for want of power ou the part of the court to inquire in the questions involved in the controversy. .Such a motion admitted all the facts stated in the bill, and also admitted all the inferences fairly dedticible from those facts iu their strongest application to the case, aud simply insisted that admitting facts and these necessary inferences from them to be true, the court cannot grant relief. It was said that this was a political question. There should be no confusion of terms here. What is the difference between a political aud a judicial or constitutional question when au act of Congress is in controversy ? There is no difference whatever. To say that the court'will , not inquire into this case because the act of Congress which it is called upon to examine involves an exercise of political power is to ad mit that Congress had power to pass the act,- and that therefore it was a constitutional law. .When the learned Attorney General addressed the court iu opposition to the jurisdiction upon that ground, he still presented a constitutional question. Had Congress the political power to pass the act ? Was the 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 if Congress hud the political power to pass it, the act is constitutional. What were the political questions into which courts could not examine ? Are they cases of laws passed by Congress ? Beginning with the first case in Dallas down to the last reported decisions at this term, he challenged the Attor ney General to produce a single case where, wheu a law of Congress was'"presented to the court ou the One side and the Constitution on the other, the court did not consider it Its duty to inquire into the constitutionality of the law. Political acts which the courts cannot inquire into were ol a different description. „ When, some time after the battle of San Jacinto, the President acknowledged the independence of Texas, which was an executive act, th<?court dclared that’that was a political power vested in the President, or, in other words, a constitu tional power vested in the President, for neither Congress nor the President, under the name of political powers, possesses auy other than con stitutional powers. It being a political, and, therefore, a constitutional power vested in the President, the court were precluded from all iuquiry into the propriety of that executive act. So, also, in the case of Luther vs. Borden, from Rhode Island, an attempt was made, by insur rection, to overthrow the charter government of Rhode Island and inaugurate anew popular government. This was resisted by the charter government, and resisted successfully. It was resisted in the judicial forum, the courts sus taining thelegality ol the charter government, it was resisted successfully in arms, and ac knowledged by the President, aud aid given in its support.. That, th© court held, presented a _ question between the two governments wmeh the judiciary could not inquire into. None of these cases were acts of Congress, and in numerous cases the court had passed the constitutionality of such acts. If the wonL had * n r ht to make the inquiry and to Faw it w*M fav ° r of tbe constitutionality ot a the same power to inquire and to Faw a b©Sn~- a ih IQBt the COQ 3titutionality of a not’ the quc ® tlon ot jurisdiction could £VhXi l>on U,e results ol the cation of the Presided t 0 . WOrd in censured, bad been greatly secession pr<£s of she P° rt ion oi the execution an ItwhEh ™ rr /™S into ground that it was u P°n the bill is presented to the PresldenFhA When a to inquire into its coustitutffinSitv w b ° U u and gives his approval; he is than L belore he with the legislative department 5f the & ing ment. Ii he declines to sign it andiH^ Ver i' by a two-thirds majority ff Congress unf** 1 ranch an act of Congress as if it had’rcJefved the sanction of the President: aud it necels? rily followed that under the obligation imnSSi upon him by the Constitution to see thafthe laws are faithfully executed, he is as much bound to execute that act as one which met his fullest approval. Why ? Because the Presi dent possessed no judicial power ; nor did Co ngress. If Congress' were to attempt to convert itself into a judicial body and the two Houses should go info Committee of the W hole to in quire into the constitutionality of a particular act, its resolution on that subject would be a mere nqllity, because it possessed legislative power and not executive or judicial power.. So the President had no right to judge of the con stitutionality ol an act of Congress after it be came a law, that being a judicial question. He has no discretion except to execute the act, nnd -that -important fact goes to the very gist of the matter. When 'an application is made for a mandanfus t<*compel the performance of an act, or an in junction to restrain the execution ©f an illegal act, it depends jipou whether the exetutive of ficers have a discretion iu either case to judge of the law, and a right t 6 qxecute it or not at their pleasure. Ii they have no discretion, and the law positively commands the execution of a particular act, the remedy is by mandamus to act affirmatively; if the law forbids peremptori ly the execution of an act, then, where it can be made a judicial question, the appeal is to the judicial tribunals, and'especially where the question is a constitutional one. In this case the. ha6 no discretion except to ex ecute the law ; the subordinate officers who are obeying his commands have no discretion ex cept to carry his orders iuto effect; and there is no distinction in such a caste between an ex- ecutive and a ministerial duty. A ministerial is merely a*brancb of the executive duty, the only difference being that a ministerial duty,is where the officer has no discretion but to per torm the act. For example: when an account is presented to Nine of tbe accounting -officers of the Treasury, or comes up by appeal to the head of the Department, the du(y of deciding upon that account Is not ministerial, because judgment and discretion are to be exercised, and thcl*efo{*e a court in such a case will not in terfere either by mandamus or injunction. But when the officer has no discretion, as in the .ease of Marbury vs. Madison, 1 Crunch; iu case of Kendall, 12th Peters, and others that have been mentioned, where the law’s positive and peremptory, and an officer is directed to do or nos to do a particular act, it is a settled principle in this Country, and in that from which we derive our jurisprudence, that the courts will issue a mandamus to compel the. performance of the act required by law, or an injunction to restrain the act forbidden by law, because in 6uch cases tbe law luis left.no dis cretion, but it is the duty of. the officer to obey it. , In the present instance the President and those acting in obedience to his orders have no discretion but to execute this law; but if*thc law be unconstitutional, -is there no power to vindicate thb Constitution V Must it be dis obeyed and treated as a dead letter ? No. The Constitution provides for that exact contin gency by declaring that the Federal triburials shall have cognizance in all cases arising under the law, and treaties of the Uni ted States, and by nuking,the Supreme Court the final arbiter to construe the Constitution and give it uniform effect throughout tbe Union, and permanent effect until its decree is reversed by the same tribunal. When the Pre sident and his subordinates proceed lo execute p lfiw which is deemed to be unconstitutional, the Constitution gives to citizens and to States, in the cases provided for. by the Constitution, the right to come iuto that tribunal which is made the arbiter, to obtain a decision on. that point. Surely there could be no dispute that this court was that arbiter, aifd- that ou proper parties presenting themselves it was bound to decide whether or not a particular iaw was con stitutional,-and to furnish all the remedial pow ers prescribed in the Constitution. * This was said to be a political question, and .to involve political results. Every act of Con gress in one sense involves political questions, because every act of Congress operates upon thirty-six millions of people as a law. through out the Union; but has the court ever hesita ted, where the question was presented, to com pare an act of Congress.with the Constitution aud decide between them ? Look at the cases whore tbe court- had pronounced its judgment ori constitutional questions. It any question was* more political than another it was one ‘arising under a treaty, because it involved our relations with foreign ‘powers ; but the court had entertained jurisdiction in many cases un der treaties. So as to the embargo, a-questipn which convulsed the Union, and upon which a portion of the country was almost ready to go into insurrection. So of the power to pass laws.* So of the great commercial question decided iu Gibson vs. Ogden. So in the case of the United States bank. That was apolitical question upon which two or .three Presidential elections turned; but the court iuffuired into and decided upon the ques tion of its constitutionality. And here he wished to notice a suggestion of the At torney General, who, iu commenting on the ease of Osborne-vs. the Bank of the United States, and spoken ofit as a private corporation. The court decided that it was a public corpora tion, and that it was only constitutional as a fiscal agent ol the Government. The court af firmed the power of the Federal Government to establish such a fiscal agency, and the right to preserve it from hostile State legislation by the remedial writ of injunction. So with the question of tariff ; and here the Attorney Gen eral stood on the same platform with the nulU fiers of 1832-83. At that time the duties were not paid in cash, but were secured by bonds ; and Mr. Webster, Mr. Clay, General Jackson and the entire Union party called upon South Carolina, who had declared the tariff law to be unconstitutional, to bring that question before the Supreme Court. Her answer was the iden- tical position now assumed, that the power to pass a tariff was a political question into which the judicial tribunals could not inquire; and that little party made frantic efforts to secure the repeal of the twenty-tilth section of the ju diciary act of 1789, which gave the right to bring before this court the final decisions of the highest court of a State in cases involving the construction of the laws, treaties and Constitu tion of the* Uuited States. So in the Milligan case, decided at the present term. The ques tion was a political one, growing out of the ex istence of the rebellion ; and yet every member of.the court exercised jurisdiction. The test oath cases also presented a political question applicable th the rebellion ; and yet both the majority and minority opinions admitted the jurisdiction of the court. The dissenting opinion in the Milligan case admitted that martial law could not be pro claimed in time of peace, and held that the court could inquire whether peace existed or not. Do Congress in the acts before the court venture to declare that rebellion now exists ? In one of their latest acts they speak of “the States lately in rebellion.” in the so-called re construction acts they use the constitutional misnomer “rebel States,” as if a State could re bel, as if a State could be a traitor, and tried and convicted before the courts! The ground on which these acts were passed was, not that any rebellion existed, but because,- as was al leged, there.was no lawful government in these States adequate to the protection of life, liber ty and property. U pon tbe same basis a simi lar law might be passed with regard to Mary land or Connecticut, and, indeed, every State of the Union. This was a mere assumption, and in violation of established facts. But the Attorney General had specially in sisted tfiat the court could not take jurisdiction of this case because no title to laud and no money qnestiou was involved. In response to this, attention was called to the fact that the bill referred to the ordinance of 1787, the com pact with Georgia of 1803 J the original consti tution of Mississippi of 1817, and the act of admission, under which vast grants of public land were made to that State, and it was se cured a perpetual right as a State, not as a territory or province, to live per cent, of the proceeds jof the public lands within her limits, which had not yet been all disposed of, and was •also granted school sections in every township and iands for the seat of government. That, however, was a narrow view of 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 ail cases where a State should be a party. That jurisdiction was grant ed to secure peace and harmony—peace abroad, harmony between the States at home—npt as to Rum 6 < t uest^ons of title to a tract of land or a whink i but as to all the great questions *Ca»icrl2 nvo l u *be constitutionality of laws of or COn struction of the Constitution, did nm mter l? re l a tion of treaties. If the States biter tllis . tribuual as the ultimate ar and the tu?! 1 uesfc »ous, it was created in vain, without remedy, aul favor of m< ? e powerful argument in oi secession and revolution. A great ar- gument against secession had always been that the had created an umpire to in terpret au the reserved rights ol the States, antj pronounce judgment for on against them.— Wheu the people of the several States framed and rat;fie<T.the Constitution, they Reserved cer tain privileges and rights to themselves, and granted certain powers to the General Govern ment. Among the rights reserved to each State was the right to come into this court and ask its decision ns the ultimate arbiter in all-cases involving the construction of The Constitution, laws and treaties of the United States. This doctrine was sanctioned by the Wheeling bridge case, although the Attorney. General had re ferred to that case as showing that the jurisdic tion was sustained because of the proprietary interest of Pennsylvania in certain canals and railroads. It was true that allegation was made, but it Was only because of a technical point; but that decision sustained the doctrine that when a State came into this court as a suitor, she had the rights as an individual would have to remedial prodess. The case of the controversy between the States of Rhode Island and Massachusetts was perfectly deceive on the question of Jurisdic tion. That case did not involve ihe title to an acre of land or a dollar of moneV; nor did the Constitution say a word about boundary in giving jurisdiction over cases between States. That was a case of disputed sovereignty and jurisdiction over five thousand people ; and the court entertained jurisdiction because of the parties and pronounced definitive judgment.. The decision in Woolsey vs. Dodge, (18th Howard,) which ought to be bound up with the Constitution, reviewed the whole subject., and showed conclusively that this court was the ultimate arbiter, in all cases arising under the United-States Constitution, laws, or trea ties. • . In the case-of corporations and franchises, a court of equity interfered to protect the fran chise itself, to*, prevent the participation of per sons who under the charter were not entitled to participate in the government of the cor poration. Did not this power apply to public as well as to private corporations ? It was em ployed in the-case of Osborn against a great public corporation, the Rank of the United States, and hes been applied in the case of city eorporatibns, connly corporations, and other public corporations, admitted in the decisions lo be cxereisins a portion of political power, to be legislating to tax the citizen or to take his property from him by public condemnation under the right T>f eminent domain. Tnis power was exercised \° protect the incorporeal right of the franchise. That question arose in the celebrated Dartmouth College ease, where the original charter vested the administrative power of the corporation in certain officers, and an act of the Legislature of New Hampshire undertook to change that organization, and to take the exercise of that exclusive power under the charter from those who were entitled to exercise .it by its provisions, and to vest it impact in other functionaries. Mr. Webster, in that ease, made an unanswerable argument in favor of the power to prolept the fran chise, though the persons claiming the exer cise of the power had no money interest in the matter ; and Che court, iu its decision in 4th Wheaton, sustained his, doctrine, and in the de cision in that case the'eourt held that the right to administer the franchise of a corporation was “ louuded on'the same basis as the right of voting in public elections,” arid it was said to be “ a sacred right, and will be protected by the courts.” The miin ground which ushered in the American Revolution was the taking away of our charters ; but even in the most ar bitrary times they scarcely ventured to take them away by legislative act, but they dragged Massachusetts and other colonies to contest the validity o£ their charters, on the question ol forfeiture or nonforfeiture, before the judicial tribunals ol England, where it was regarded as a judicial question!' The right to vote in a pri vate corporation was a sacred right to be pro tected by the judicial tribunals ; and the light to v.ote in a city, county, or other public corpo ration exercising vast political powers was a sacred right which the courts would protect; and yet was he to be told that the same right of afu American citizen, sacred by the Constitu tion—a right without which liberty is a shadow and self-government a pageant, a right secured by the first article of the Constitution—was to be frittered away so as not to be capable us pro jection by judicial interference ? The right of suffrage, who should vote for membersLpf Con gress and Presidential electors, was orfe'-of the great disputed and difficult questions presented to the consideration of the framers of the Con stitution, and after much deliberation and great diversity of opinion, riot being able to agree upon auy one uniform rule applicable to every State, they finally adopted the principle that each State should decide for itself who should have the right to vote for members of the popular branch of the State legislature, and that whoever were thus permitted by the State con stitutions to vote for members of tbe popular branch of the State legislature should be the persons who should.be entrusted with the power of voting for members of Congress and electors of President, and, in fact, with the car rying on and administering of this Government. These are the men who carry ou the Govern ment through every department. Even the Supreme Court represents them, and carries into effect the powers given by them. This principle was incorporated into the Constitution by the unanimous act of thirty-six States, for all the States admitted since the Constitution was formed assented to it; and when this right constituted the very vital es sence and - being of the States, was he to be told that this power of each State to decide who shall administer its affairs may be taken away by act of Congress without any power on ftie part of the court to interfere ? Is not that a State right, or are there no State rights ? Are they obliterated ? Have the stars disappeared before the powerful effulgence of the rising central sun, and faded out of -the firmament ? Are there any States«till left ? Have they auy rights ? What are those rights, and how are they to be exercised, and by whom are they to be protected when assailed by unconstitutional legislation ? The Constitution makes an ex press reservation to the States, or to the people, of.rights and powers not granted. Are there no Tights in a State as a State ? Is not the right ot each State, acting in its corpo rate capacity, in framing its State constitution and laws, distinctly reserved to declaie who shall exercise the elective franchise ? And yet the act of Congress herein question entirely subverted the State systems on this subject. It was an act without a parallel in history, ex tending martial law over ten millions of people, loyal and disloyal, of all races and colors, vest ing unlimited power in a military satrap, sub stituting the glimmering sword and the glitter ing bayonet for the judicial tribunals. It lays the axe to the root of the elective franchise ; it extends the right of suffrage to three or four millions of people excluded by the State con stitutions, and excludes tens of thousands by classification who are entitled to it under the State constitutions—the broadest bill of attain der or of pains and penalties ever enacted. It took away other rights reserved to the States as States. The Constitution provided that no man should be tried except in the State where hi3 offense was committed ; it prohibited Con gress from passing ex post facto laws, or laws impairing the right ol trial by jury, or from taking away life, liberty, or property without due process of law. These were all State rights, exercised by the people of ftie several States within their boundaries; but they were all swept away. He had travelled through Egypt, Syria*, Turkey ia Asia, Turkey in Europe, and thousands of miles through Russia, and there was no such despotism in Africa, or Asia, or Turkey, or Russia, as which was estab lished by these acts. They all had courts-of some description, and allowed a hearing and an opportunity of defense; tbe sword was not the only arbiter; but here an act of Congre ; s swept ten” States out of existence, reduced them to worse than territorial bondage, and subjected every one of their ten millions of people, of all ages, sexes, and colors, to the despotic will of a military commander. History was full of ex amples not only of physical epidemics, but of moral epidemics, when, for short periods ol time, Vast bodies of people were infected, as if with madness, to perform deeds from which, on the sober, second thought, they would shrink back with horror and dismay. We were now suffering from one of these epidemics. Although all the sacred rights which lie at the foundation of public liberty—lor which Sidney perished and Hampden bled, and our patriot forefathers poured out their blood pro fusely in the war of the revolution—were pro tected by the Constitution, were the people to be told that Congress could take them away, and that this court was powerless .to interfere, because they were political rights? Was the only remedy through the ballot-bo®? The ela borate* arguments in thef Federalist and the great discussions in the various State conven tions show that our fathers well knew-that all people were subject to epidemic movements, arising* Hfft ot great copvulflous* in which they might do acts that ia cooler moments they would deeplr regret; and the framers of the Constitution* inserted guaranties to guard pgainst such au emergency as, tbe present, when the popular mind is lashed into a tempest, and the waves of the great eqcan of civil strife are *till throwing their tumultuous surges upon our shores. If the people are to decide such questions, where are we to look for the will of the people ? Congress are but the servants and agents of the people. The Constitution was the unanimous voice ot the people of all the States, and that was the will which should gov ern. One of the objects of the Constitution was to protect minorities —minorities of States and minorities of the people. The majority could protect themselves ; the power of legis lation was in their hands. But it had been said that these States had faded out of existcnce v The act of Congress, although it calls them “ rebel States,” treats them as though they were not States ol the Union. It requires them -to insert certain clauses in their State constitutions grantingaud guar nteeing the right of suffrage to a portion ot their inhabitants, aud it commands them to give their assent to certain, amendments of tlie Constitution of ttie United States. Can Con gress frame a constitution for a State! Cau Congress insert any provision In a State con stitution ?’Has Congress a right to dictate to the people of a State who shall be entitled to the right of suffrage under their constitution? Although in some respects.the act legislates for these States as if they were not States, it yet admits them to be States, because it forbids the admission of their representatives until the last constitutional amendment is ratified by a constitutional majority. If they were not States, there were but twenty-six States when the act was passed, and more than tlirce-fourths of those twenty-six States had ratified the con stitutional amendment; and yet Congress ad mitted that the amendment had not been rati fied by the constitutional number of States re quisite for that purpose, and required these States to ratify it before their admission into the Union, and excluded them until it should have received the ratification of a sufficient number of States to give it efficacy. But it was said that there had been a great rebellion in these States, by which the regular operation of the laws and the regular-State au thorities had been suspended. True ; but what then ? If the ordinances of secession and the constitutions framed during the rebellion were mere nullities, they still remain States of the Union. Then what was the consequence when the insurgent power was removed ? If a Brit ish army had seized and held Louisiana for years, suspended all the operations of the courts and public functionaries so that there was no one to re-inaugurate State government there, would Louisiana thereby cease to be a State ; or could the people, on the removal of the hostile force, come together and again put the State iu operation ? What was the differ ence between the same results produced by a foreign invasion or a domestic insurrection ? The insurrection prevailed lor a while. It had no lawful, no constitutional power. The se cession ordinances were mere nullities. The pretended State functionaries during that time were no functionaries at all, because they had not taken the requisite oath to support the Federal Constitution, and were engaged in a treasonable rebellion. When the opposing ob stacle was removed, and the insurrection was suppressed, did chaos prevail ? Was there no State left? Were'there no people of a State that could re-organize government? A. ease decided in 2d Gallison as to the island of Cas tine; putting in force the doctrine of post limine, was precisely in point.. During the war of 1812 Castiuc was held for years by the Brit ish,’ and not a vestige of State or Federal au thority existed there ; but when thq war ended, what was its condition ? Did if require the in sertion of a single word in the treaty to restore the Federal aud Sta,te power there? Not at all; but it came back by the doctrine of post limine , which i6 distinctly recognized as a part of she municipal law and the international law; and the moment the opposing force was re moved, Castine was again a part of the State of Maine, and the laws of Maine and of the Union resumed their full operation there. So with these States ; all these acts being ab- solute nullities, the pageant called the Confed erate Government beiug removed, the secession conventicles, which were assemblies of trait ors and insurgents, without the least particle of legal or constitutional authority, with no legal right to disband the old State governments, or withdraw the State from the Union, or sus pend.the' operation of . the State or Federal laws, having ceased to exist when the opposing force was removed by the doctrine of post li mine, and the law‘of common sense and com mon justice, did not the people of the State— especially the loyal people—the battalions from Mississippi who shed their blood in de fense of the Constitution and-the Union, and the thousands from Virginia, Louisiana, and other States who marshalled under the stars and stripes—became vested again with all the attributes of the State? Were such people dis franchised with all the rest; deprived of all le gal and constitutional rights ; reduced to terri torial pupilage and military bondage; deprived of the right of suffrage, or trial by jury, and of all the guarantees of the Constitution ? Were there no people left when the opposing, illegal, treasonable power was removed, who, without any aid from Congress or the President, could exercise the sovereignty of the State ? Govern ments are not sovereign ; law-makers are not sovereign ; the sovereignty is vested in the people. Sovereignty is the power that makes governments. Did not the people constituting the sovereignty of the State of Louisiana, ex cept where it should come in conflict with the Federal Constitution, revert by the mere op eration of the. doctrine of post limine to their original rights, which had barely been suspend ed and not abrogated; aud were they not au thorized. without the intervention of Congress or the President, or any other tribunal, to come together and put their government in operation ? Mississippi and each of these ten States had a State constitution recognized as republican and valid when the rebellion broke . out; and each had State laws whose validity was recoguizcd by all the departments of this Government. — Was that State constitution abrogated by an unsuccessful rebellion ? What destroyed it ? The rebellion did not. because it was unsuc cessful. The secession ordinance did not des- troy it, because that was a mere nullity. It seemed perfectly clear, then, that the State con stitution and laws which preexisted to the re bellion, and were in conformity to the Federal Constitution, were -in full foree, and just as binding after as before the rebellion. The people might have acted under them; or, as they had a right to do, they could come together and organize a convention which w*>uld cither acknowledge the old constitution—as. Missis sippi did in nearly every particular—and the old State laws, or might modify them; as the people of every State have a right to modify their constitutions and laws in subordination to the Constitution of the United States. If the constitution of Mississippi was abrogated and ceased to operate, at what moment of time was it? Was it when the ordinance of seces sion was framed? Did that act of aconven-, tide of insurgents, who had no legal or con stitutional power, abrogate the lawful constitu tion of Mississippi ? Was it abrogated by the insurgent movements? Did an unsuccessful war —a war to destroy the State constitution, a war to destroy the Federal Constitution, a trea sonable war to subvert the Uniou and destroy the government, and, indeed, obliterate the principle of 6elf government throughout the world—destroy the State constitution and laws of Mississippi? If neither the secession or dinance nor tne unsuccessful rebellion destroy-* ed that constitution, is it not still in force, ex cept so far as it was modified in 1865? It was clear the people, in the exercise of their sovereign power, had a right to come together in 1865 to modify their constitution; but if there was anything irregular in that, the old constitution remained in foree, which was re cognized as valid and republican. Congress had no power to destroy it. Congress had no power to treat as nullities State constitutions which had been accepted and acted upon for years. If Congress can dictate certain pro visions to be incorporated into a State con- stitution, they can frame an entire constitution i for a State aud demand its adoption, ou penalty of beirtg taxed forever without representation ; j and if they may suspend the rights of a State for a year, they may suspend them forever.— The question of constitutional power does not depend upon the number of months or years within which Uje act is to operate. If Congress had power to declare thnt these are not States, aud that there areUo lawful State governments there, they may keep them in territorial pupil age until centuries have rolled away and eter nity grown gray with age. But the learned Attorney General has said ‘that the danger is meiely imaginary,, for these events may never occur ; that the sword of j Damocles is suspended over us, but the hair by which it is held may never break; that although absolute powj?r is given to the military com manders to destroy the State governments, aud put out of office the Governor aud judges, and prevent the election ot anew State Legislature, aud to try men, not by juries under the Con stitution, but under military law, yet that these things never will be done. The courts exercise by the great remedial writ of injunction the power to prevent the execution of such acts. It is quia timet, because the complainant fears that au unlawful act will be carried into effect. In the language of the books, it is because the complainant is threatened will* the pei lorm anee of an illegal act. It is for that very rea son that a court interferes iu advance of the execution of thq law, because it would be too late wheu the acts were accomplished and these officers were all disbanded. The bill ol com plaint in this case sets forth that we are not only in danger of the execution of those laws, but that we are threatened with it directly by the President, verbally and in official acts; that the Secretary of War and the General in com mand have issued orders to carry it iuto effect, and that it cerfaiuly will be carried iuto effect unless this court,intervenes. That is the very ease in which a cobrt of equity interferes in ad vance to prevent occurrence of evil. These generals are not only .regulating the. right of suffrage, but they are interfering with the. lib erty of the press; they are declaring that it Governors or individuals expressed ceitaiu opinions they will be turned out ot -office and punished. They have issued orders disbandiug some of the courts, aud threatening to disband* them all iu a certain contingency. They have changed the entire penal code of several ot the States of this Union. They have made that a crime which was uot a crime before, by mere military edicts ; aud not only that, but they have changed the mode of punishment or dained by State laws, and they have substituted by military orders au entirely different punish ment from that ordained by the State laws. And yet we are told that these are imaginary dangers, and that the evils we apprehend may never occun. If, but one short year ago, any man had even imagined that such au act as this ‘could be enacted by Congress ; that martial law\ to the exclusion ol all civil law and consti tutional law, could be inaugurated by military force; and if he had ventured to predict that such would have been the progress of the epi demic madness which is now surging over the country, he would have been thought almost fit for an asylum which, perhaps, ought uot to mentioned in this court. . But it has been said that these States arc mere conquered proviuces ; that the war was iu the nature of a foreign war, and that the people of the Southern States stand in precisely the same attitude as the people of Mexico would if we conquered Mexico, silenced all her laws, put down her government, and extended to them only the government of the sword. The Attor ney General would not assume that position ; but it had been presented by those who advo cated the law, and whose arguments had been presented to the people, and was, therefore, worthy of notice. This involved the power to expel States from the Union. If they are mere conquered foreign territory, it would involve a much larger power—the power to declare that they were not within the territorial limits of the Republic. This was the doctrine of the seces sionists of the South, who are now, in great numbers, advocating the enforcement oi this law. This doctrine had been emphatically de cided against by this court iu the prize cases decided at the December term, 1862, in which it was held that Congress had no power to de clare war against a State, and that the contest for the suppression of the rebellion was waged in pursuance of the acts of Congress of 1795 and 1807. It was not a war at all, in the true constitutional sense of the twin, though called a war in the popular sense. A war, in the con stitutional sense of the term, only arose when Congress declared war. Congress had no power to declare war against a State, and the exertion of force against the rebels in arms was merely the suppression of a rebellion under t’-ic stat utes. The terms “conquest” and “conquered territory” could only apply in cases where there was war iu the true international and con stitutional sense. In this case none of the rights of conquest followed ; the Southern people were uot a conquered people. Those of them who participated in the rebellion were subdued in- surgents. The States were still States, for if Congress could not make war upon a State it could not conquer it; and if it could do neither, it could not expel a State from the Union. It was said in the Milligan case that during war the laws of war prevail, and during peace the laws of peace prevail, and that all the con sequences of war disappear where there is peace. Is there not peace now? Has Con gress ventured to declare that there is war— foreign or civil—existing? Has it attempted to preclude judicial inquiry into, that great fact by asserting that the rebellion is still progress ing ? Not at all. It simply says that there is no lawful government iu these States, because, according to its doctrine, their people are a conquered people, and the rights of conquest, including confiscation, follow as a necessary consequence. Congress not having asserted that the rebellion still exists, the facts of the case must be looked into. The President, un der the authority giveu him by the acts of 1795 and 1806, and by laws passed during the rebel lion, has declared jthat peace prevails through out the Uniou. That ‘official document pro claimed by the President, the Commander-in- Chief of the army and navy, must be regarded by the court. For two yers there had not been a solitary act of war or a threat of war through out the Union. The armies arrayed-against the Union have been disbanded. The barner of the Union floats again in triumph over every State. There is complete, absolute, unanimous sub- mission. The people of each State have re organized State governments in obedience to the Constitution. They have elected repre sentatives to both Houses of Congress. There is not even a pretence for declaring the procla mations of the President to have been nulli ties, or that there is now or has been for two years auy rebellion in any of the States of the Union. There is peace; - trierc is profound peace; there is more absolute peace than there ever was before since the Government was founded. We have no Shay’s rebellion. We have no whisky insurrection. We have not the still more formidable Olmstead war, which raged in Pennsylvania from 1803.t0 1809— not a rebellion of small bodies of men or counties, but a State rebellion as far as a State can rebel, headed by the Governor and the Legislature of the Btate, I be lieve, by a unanimous vote, in which the State troops were marshalled to enforce a State decree against a judicial decree of the courts of the Union, and which threatened direct colli sion. That was the very rebellion which led to the passage of the act of 1807. That great aud good man who was then at the head of the ria tion, who was so great a philanthropist, who loved the whole human race, and who, like all great men, committed some errors, but, like most great men, (as one of the greatest said of Lord Mansfield,) was great enough to acknowl edge them—he recalled by his acts during that period every word that he had said before in favor of the supposed right of a Btate to nulli fy or secede. Jefferson found that under the act of 1795, which merely authorized the call ing out of the militia to execute the laws of the Union and to suppress insurrection, the militia were against him ; and he sent a message to Congress requesting the passage of the act of 1807, which for the tir6t time, in addition to the militia, authorized the use of the army and navy of the United States ; and it was through that instrumentality, and by a contrivance of the marshal and sheriff, that a collision was prevented. Although that great State theu committed that folly, it has been redeemed since by ten thousand virtuous and patriotic deeds. But the Legislature of Pennsylvania then took substantially the same ground in some respects that South Carolina has since done, and de clared that this tribunal could not be trusted with the decision of these greatt political ques tious, ancl called uptfti ber sister States, by an amendment of the Coustithtion, to create some other tribunal, composed of representatives from all the States, to whpru great judicial questions involving political consequences should be referred. Virginia, acting iu obe dience to the known views of Jefferson and Madison, passed resolutions in 1810 in opposi tion to the resolutions of Pennsylvania against auy amendment of the Constitution in that respect, and declaring that the Supreme Chart was tjie arbiter ot all constitutional questions, whether they Involved political consequences or not, and that no tribunal so safe as that could be organized in this Government; and every State, except Pennsylvania, went with Virginia on that occasion. The bill of coiqplaint in this case was filed by the State of Mississippi to vindicate her right under the Constitution.* Ln-addition to her fights under tin.* Constitution she came into the Uniou under a compact between the United States and Georgia, which compact re affirmed and extended to Mississippi all the privileges of the ordinance* of 1787, securing to her forever the right of trial by jury, and all the other great rights guaranteed in the Con stitution, and making to her - certaiu grants of public lauds of great value. Thlk arrangement was declared to be a fundamental law and a -compact unalterable without the conscut of both parties. The court has again and again recognized the binding force of the ordinance of 1787, not merely as a law, but as a fundamental compact between the Government ol the United States and the people of all the States admitted into the Union finder that compact. The compact was of itself a conclusive argument against the pretended right ol secession. If it was a bind ing compact, having nil the force aud power of a treaty under the Constitution, by what power or authority could it 119 w be disregarded ? And yet each and every one of ijs provisions is swept away by the act ol Congress just as effectually as if that act had contained a clause iu so many words repealing the ordiuaucc and qompact of 1787. Under the treaty with Spain of 1»95, the United Sfptes claimed Natchez and Mississippi as a portion of the Spanish territory, accepted their possession from- the Spanish forces, and in 1798 organized aud put in full operation there a territorial government;. lu* 180’ Con gress accepted a quit claim from .Georgia to that territory, but never acknowledged the title of Georgia to do it. But in the great case ol Fletcher vs. Peck, notwithstanding the fact that Congress, exercising its political power, had decided iu 1798 that Mississippi was a part of the territory‘ceded by Spain, and upon the basis ol that opinion had organized and kept in operation for several years a territorial gov ernment agaiust the protest of Georgia, this court decided, unanimously, with the single dissent of Mr. Justice Johnson, as to the point of jurisdiction, that in 1795 the whole territory north of the thirty-first parallel was within the limits of the State pf Georgia, and that the United States had no title to it until Georgia ceded it in 1892. As regards the three lower counties of Mis sissippi, the court has decided that that portion of Alabama aud Mississippi below the 31st parallel was embraced within the Louisiana treaty 7 , and that its inhabitants were entitled to all the rights and privileges secured by that treaty, many df which rights were clearly .in- Iringed by this legislation. It embraced not only that portion of Mississippi north of the 31st parallel, acquired from Georgia and pro tected by the compacts of 1787 and 1802, but also embraced the three lower counties upon the Gulf of Mexico, acquired by the treaty from France. The -Attorney General placed much reliance upon the decision in the case of the Cherokee Nation vs. The State ol Georgia. (sth Peters.) The court there held that the Cherokee Nation was not a foreign State in the sense of the Con stitution ; was not a State that could sue in the courts of the Uuited States, and therefore that the court had no jurisdiction lor the want of a proper party to the bill. All beyond that was obiter dictum ; but what was that ciSe ? It was a bill, not against the agents of the Slate of Georgia, but a bill to restrain the State as a State in its corporate capacity from the execu tion of its laws, and at a time when the State was actually executing them by force. If the present bill was li'ed against the Government of the United States to restrain it as a govern ment from executing by force the Jaws in ques tion, there might be some analogy; but it is uot a hill against the Government; it is a bill to restrain subordinate officials. A careful perusal of the decision in Marbury vs. Madison would show that such a bill was sustainable. A word, in conclusion, as to the irreparable injury that will be done if this court docs uot interfere. No one rises here, and he believed no one could rise and defend in his soul and conscience the constitutionality of these laws ; but although their uuconstitutionality is sub stantially conceded, the question is to be evaded; he used the word iu the same Pick wickian sense in which the Attorney General spoke of the first bill filed as “scandalous.” The court is asked to shrink from the defense of the -Constitution; to fly from the battle ments which pouare sworn to defend ; to abdn don the Constitution in its last citadel; to shut your eyes upon the fact that the Constitu tion is violated. You are asked not to see that ten States and teu millions of people are de prived of all their rights under the Constitu tion, and that it is repealed so far as they arc concerned. Four of those ten States united in forming this Government after they had joined in carrying the country successfully tliroug 1 the war of the Revolution. One of them, Vir ginia, gave us the great, the sublime man, with out whom, under Piovidence, perhaps our in dependence would never have been achieved. They united iu carrying us through the second war of independence, and raising tb<s country to a pinnacle of power and glory unknown in the history of the world. What if some ol them did err recently? Did not Massachu setts err iu Shay’s rebellion ? Did not Penn sylvania err in the “.whisky and the more formidable Olmstcad’s rebellion? Did not New England err when she assembled a band of traitors at Hartford, who, but for the glorious victory of New Orleans, would have at least endeavored to drag those great States out of the Union? Because these States have committed such great errors, have they now no rights ? Have the loyal people among them, numbered by thousands and teus of thousands, who risked their lives in the very heart of the rebellion, no rights ? Are those people who, notwithstanding all their faults and errors, are citizens of a common country, destined to share the same fate as ourselves, to have no protection from this court, nlthough those ot them who went out did it upon the ground of Mr. Calhoun and his followers, that the court had no right to decfde upon questious of this kind ? Now, when they have come back and assert the true doctrine that secession is a mere nulity, and appeal to this court as the arbiter created by the Constitution, arc they to be told that they have no constitutional rights, or at least none which will be protected by this court, that perhaps you might redress the grievance of an individual who would bring a suit for an unlawful arrest, but when this mili tary law has gone into effect, and each and every one of these State constitutions and gov ernments shall be overthrown aud their people reduced to military bondage, you ill say to the States, “We cannot help you ; .there' is no remedy for you ; these are great evils ; we see plainly that you are deprived ol your constitu tional rights ; but the Constitution, to which you now appeal, gives us the fiual arbiter, no jurisdiction to maintain your constitutional rights ” If, instead of the friends of the Con stitution and the Union, as the country knows you all to be, some of its worst enemies, repre senting its despotic foes, were sitting here to decide upon \be destiny of this country, and to pronounce upon tbe perpetuity of the Constitu tion and the Union, what more fatal edict could be pronounced bjr this court than to declare that there is no peaceful remedy for ten States and ten millions of people within the limits of this great Republic ? The Tremont Mills and Suffolk Manufactur in# Company, of Lowell, Mass., have given the operatives in their employ notice of a partial stoppage of work in their mills. One-half of the work of each corporation is to be stopped on the expiration of the notice, and the manu facture ot woolen goods is to be entirely su spended. The operatives are leaving daily, aud there is no disposition to fill their places, and those out of employ find it very difficult, if not impossible to get work. —New York Times.
