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CONSTITUTIONALIST.
aug-usta, GA.
WEDNESDAY MORNING, MAY 1, 18«7.
Reading Matter on Every Page.
U. S. SUPREME COURT.
Georgia and Mississippi Injnnction
Case.
Arguments of the Attorney General and
Charles O’Connor, Esq.
The motion ot the Attorney General to dis
miss the bills of complaint filed by the States
of Georgia ami Mississippi respectively against
Secretary Stanton, General Grant, and the mili
tary commanders of the districts, (in one c.is<
General Pope, and in the other General Ord,)
came on to be heard yesterday. The argument
was commenced by Attorney General Staubery,
who said :
It is stated in one of the briefs filed by ni£>
learned frieuds that no more important case
than this has ever been before tins court, or
called to its attention or submitted tor its de
cision. If the gentlemen mean that the ques
tion set up in this bill is the question before
this court; if they mean that the question which
now divides the people of the United State
info two great parties is here ; if they mean that
the great controversy as to the mode and man
ner and time of reconstruction, and the settle
ment of the state ot things consequent upon
the rebellion, is here lor decision, lam quite
willing to admit, although I am accustomed to
hear lawyers overstate the importance ot theii
cases, that the importance of that question can
not be Overstated ; but if that, is the question
here, I find myself in a very awkward position.
If the political question is here, and lam to
talk as a politician and not as a lawyer, I should
rather choose to take my place by the side ot
the opposite counsel and argue with them the
political question ; for all iny sympathies, so
far as 1 am a politician, are with them. If,
however, as I conceive, that question is not
here at all; if here we are only to consider a
• judicial questiou, and the case before the court,
aud if, as I apprehend, I am to speak only as a
lawyer and to the case, then, indeed, I feel my
self to be in the right position, and, I may be
allowed to add, on the right side. And I shall
take care through the case hereafter to speak
of it as a lawyer, and to speak of the case be
fore the court, for, in ray judgment, the great
question that now divides us from one end ol
the country to the other is not here at all, is
not to be discussed, and certainly not to be de
cided ; for although this court sits to entertain
great cases and to decide great questions, that
question this court can never decide, and it is
not one of those great controversies that your
Honors can take coguizance of.
Then, in the first place, let me endeavor, in
as few words as possible, to get before your
Honors what is the case and the question sub
mitted. I think the best way in which I can
present it preparatory to the argument, is to
begin with the laws or acts of Congress that
are here brought in question, upon the execu
tion of which it is alleged by the complainants
that they are to suffer injury. J deem it proper
that the court should first he fully possessed of
these acts of Congress and of what they enact,
before considering the statements of the bill of
complaint, for, without understanding what the
acts of Congress are, the allegations in the bill
•will not be well understood by the court.—
These acts ol Congress are very recent. It is
only within the last month that they were pass
ed, and yet they are said to be here for adjudi
cation. The first is the act of March 2, 18(57,
passed by the Thirty-ninth Congress, towards
the close of its session, over the veto of the
President, entitled “An act lor the more effi
cient government of the rebel States.”
The Attorney General proceeded to state, in
detail, the provisions of the military recon
struction act, of March 2, and the supplement
ary act of March 23, 18(17.
This is au original hill in equity filed in this
court. The parties to it —I am now speaking
of tlie Georgia case—are the State of Georgia
as complainant, and as sole complainant, and
Edwin M. Stanton, as Secretary of War, Ulysses
S.Grant, General-in-Chief of the Army of the
United States, and Gen. Pope, the military com
mander of the Third Military District, in which
is comprised the Slate ol Georgia, as defend
ants. These different officers arc also describ
ed in reference to Oicir citizenship—that the
Secretary of War is a citizen of the State.of
Ohio, and General Grant and General Pope
both citizens of the State of Illinois. That is
the character of the case, so iar as the parties
arc concerned.
He next proceeded to analyze the various al
legations in the bill of complaint, which alleg
ed these acts of Congress to bo unconstitution
al and void, recited the origin of the State of
Georgia, and claimed that their execution
■would annihilate the present State of Georgia,
take away all its political rights, and interfere
in its domestic affairs in particulars not com
mitted to Congress, especially as to the exer
cise of the right of suffrage in that State. The
bill alleged that the President, although he
vetoed these acts and endeavored to prevent
their passage, considers it his duly to execute
them, and hence it becomes a part of the func
tions of tlie Secretary of. War and of the Com
manding General to receive orders irom the
President, and transmit them to the proper
officers who are to execute these laws. It is
alleged that Mr. Stanton and General Grant
give out in speeches that they intend to issue
aud transmit such orders as the President shall
give (hem. It is further alleged that the Presi
dent has appointed and designated lor the dis
trict in which Georgia is comprised a military
commander—-General Pope, a citizen of Illinois
—who gives it out in speeches and threatens
to execute these laws, and will execute, unless
restrained by the order of the court.
These are the dangers threatened ; these are
the rights invaded. To protect these rights, to
avert these dangers, tlie court is asked i.o inter
pose by preventive injunction, and to stop
from beginning to end the execution .ot these
two acts of Congress—to stop it now, this mo
ment, for they say if this Is allowed to run for
six mouths the injury will be consummated,
and there can be no relief that is not instanta
neous and preventive. This court, therefore,
is asked to enjoin General Grant and Secretary
Stanton from receiving any orders from the
President and conveying them to the military
commander of the district, and to enjoin that
military commander and the lorees under his
command, and ail the machinery that is to be
set at work by him towards carrying these laws
into execution, from taking one step or making
one order towards their execution. But at last
the gentlemen stop before these laws are fully
executed. They carry their prayer for an in
junction down to the meeting of the conven
tion. They might as well carry it further, and
enjoin the convention from framing a constitu
tion ; a little further, and enjoin the people
from ratifying the constitution ; a little further
yet, and enjoin the President of the convention
from sending that new constitution here to the
President; a step further, aud enjoin the Pres
ident lrom sending that constitution to Con
gress; a step further, and enjoin Congress
from accepting it; lor,'after all, that is the
point; that works all the mischief, and nothing
but that does work if, lor until Congress acts
all that is done is “ leather and prunella.” No
State constitution now formed is displaced un
til the final act of consummation by Congress
is done. Why iiot, then, my friends, have gone
a step further, and, to get relief, enjoined Con
gress from ratifying the constitution ? Until
that act comes you are not injured.
My first ohjectiou is that we have not such
parties here as authorize this court to entertain
any case. Tlie bill is filed under that clause ot
our Constitution which gives to this court ori
ginal jurisdiction in a controversy between a
State as plaintiff, and a citizen of another and
different State as defendant. The jurisdiction
is not because of the subject-matter, but because
of the parties ; so that if it happened that Stan
ton, Grant, and Pope were citizens of the Dis
trict of Columbia or of a Territory, or citizens
of this very State of Geornia, there would be no
case. But, say my friends, we have thejvery
parlies specified iu the Constitution ; we have a
State as plaintiff. I will not stop here at this
point of tlie case to question the right of the
State of Georgia, as a provisional government
or otherwise, to bring a suit. The purposes of
the argument do not require that. It is tlie
charter ot the defendants on which I rely to
show that this court has no original jurisdiction
in this case.
What is the meaning of this clause of the
Constitution ? Does it not suppose an actual
controversy between a State and a citizen of
another State ? What is the reason of giving
the jurisdiction ? It is that a sovereign State,
having a controversy with a citizen of another
sovereign State, of no more, but. of equal,
dignity, shall not be .required to go into the
courts of that other State to ask its rights and
settle the controversy which it has with the
citizen, either because it is below the dignity of
the State whicii asserts tlie right, or perhaps for
fear that tlie State holding the jurisdiction
might be partial to its own citizen. , A Stale
•cannot come into this court with a suit against
its own citizens or against citizens of the Dis
trict of Columbia, or citizens residing in the
Territories. The jurisdiction extends only to
the case of a controversy botwe n a State aud a
citizen of another State.
I ask your Honors, was it ever intended by
the Constitution to give such jurisdiction as
(hat which is sought here? Who is this con-
V
troversy with ? It is with officers of the United
States of a very high grade. What is the con
troversy between the State of Georgia and these
officers? Is it with them as individuals ? Is it
with Edwin M. Stanlon, as a citizen of Ohio,
that Georgia has a controversy, or witli Grant
and Pope, as citizens of Illinois? Not at all.
It is not alleged that either of thcße defendants
is abonl to do anything in his individual capaci
ty which is a subject of controversy between
him and the State of Georgia. The controversy
is not with them in their individual capacity as
citizens of States, but with them as officers of
the United States, who have no State citizen
ship, but are hound to reside here. The place
of residence of the Secretary of War and Com
manding General is by law here ; their official
residence is in this District. It is against them
as officers that Georgia makes complaint, and
she seeks to restrain their official acts. A court
of equity looks at tlie substauec ol things, not
merely at names or forms. When you are
asked to entertain the limited jurisdiction given
to this court in an original ease, and find Unit
as to parties it must be a controversy between
a Slate and a citizen of-another State, 1 ask your
Honors, when you come to look at this ense, if
there is anything that fulfils a single idea of
such a controversy ? Suppose to-morrow Mr.
Stanton is removed or resigns his poet as Secre
tary of War, what becomes of Stanton, a citizen
of Ohio, defendant in this ease? Is there any
. controversy left between Georgia and Stanton,
us an individual and a citizen of Ohio? None.
’ Straightway it is necessary to have a new officer
• of the Government here, and they must sub
stitute a new Secretary of War at once, if lie is
. a necessary party. And suppose that Secretary
happens to be a citizen of tlie District of Co
-1 lumhia, what becomes of their case then? It
t seems to me perfectly clear that there is noth
ing to bring this case within t-iia letter, tlie rea
son, or the spirit of the constitutional provision
giving this court original jurisdiction. It is
, unnecessary to take up time on this point.
Next, if tlie court please, I come to the more
important question as to the nature of the right.
- set up here, the alleged infractions of that right,
- and the relief which is asked from this court
to establish that right., pirsf of all, look at Ihe
i time and tlie state of things whei) fbjs bill is
filed. Tlie Ink with which these acts of Con
t gress was engrossed is hardly dry; Congress
has just ad journed ; and at ouee the controver
- ay tiiat railed there a few weeks ago Is hr ought
i here to be settled. The President, attempted to
■ settle it. Constitutionally he attempted to give
i the relief which is 60nght here. In the exer
cise of his constitutional powers the President,
- while these acts were upon their passage, at
i tempted to stop them by his veto; but Con
. gress, also acting under the Constitution,
> passed them over bis veto by the requisite roa-
I jority. The laws were passed, and what then ?
I Before anything was done beyond designating
military commanders, this bill was filed. Let
i us begin at the very beginning; start the mo
ment a law is passed, for if there is jurisdiction
now in this court to stop the execution of these
laws, there was jurisdietiop on the 24th of
March, when the last act was passed, before the
President had even appointed military com
manders ; because, recollect, tbe danger threat
ened here is altogether prospective. It is that
these parties, the President, the Geueral-iu-
Chics, the Secretary of War, and the military
commander, give it out in speeches and threat
en that they will execute these laws. From
the beginning the same allegation might have
been made, for tbe President has said from the
first —it has always been his doctrine, aud I
hope always will be—“ The moment a law is
passed over my veto, nothing is left for me but
to execute it.” The gentlemen might then
have begun at that moment with their hill, and
have said to this court, “Stop now the execu
tion of these laws.”
What does that mean V That, I say, is noth
ing tint judicial veto—in fact, far superior to
the Presidential veto. A judicial ve£o, a judi
cial sentence of a court ot the last resort is
final, and no Congress, and no two-thirds in
Congress, can change, alter, or modify that. It.
stands fixed as the law, pronounced by a tribu
nal that remains here for life —cannot be set
aside by any changes in the popular sentiment.
It selties it forever. I say "this is an absolute
veto. It is precisely the same veto that, tlie
Roman Tribunes had. What was that ? Those
officers, chosen during the Republic to protect
tlie interests of the people, called Tribunes,
had no Insignia of office. No rods or lictors
preceded them; no emblems of sovereignty
accompanied them. They had not a house ;■
they sat, on benches. They dured not enter the
Senate House. They could only be elected
from the plebeians. Aud yet tlie majesty of
the Roman people was represented by them,
and they bad authority, by pronouncing one
word, veto , to stop every ordinance of the Sen
ate, to stop tlie execution of every Jaw, abso
lutely and conclusively, without any appeal.—
That power was by Csesar ultima jus Trtbuno
i rum. What is this, your Honors', but that ?
Here, upon the passage of an act of Congress,
i before a single step is taken towards its execu
l tion, before any ease arises, before any individ
; ual is hurt, before any parties appear, comes
■- the State of Georgia anil makes parties those
- who have not as yet (executed tlie law, but who
\ threaten to execute it —that is, those upon
- whom the law imposes the duty of execution'-
- and asks this court to stop the execution ol
3 the law, to decree that it is a dead letter, to say
f that nothing shall lie done under it, to say
3 “we veto it.; we forbid it." is not tiiat abso
i lutely so ?
i If this can be done, the same jurisdiction may
lie invoked whether yon can get nominal par
- tics ; may he invoked iu regard to every law
■ that Congress ‘may pass before it proceeds to
- execution, and before as yet a case has arisen
I under it. If there is a power in this court to
i veto laws which tlie people consider wliolc
, some and necessary, and instruct their repre
i sentatives to pass, it is high time that they
• should know it; but such a power lias never
before been invoked. This is not the first oc
casion on which tlie people have been convuls
ed from one end of the Union to the other on the
question of tlie constitutionality and expediency
of a law. Tariff laws, annexation laws, aud—
it would take me a long while to go to the end
of tlie chapter—laws of various kinds have been
passed again and again by Congress as to which
there were questions of constitutionality and
propriety. If there was always a power here in
Litis court to stop them before they got into
practice, before any ease had risen under them,
it is a curious thing tiiat this court was never
invoked oil such an occasion ; that, on the con
trary, the people thought tlie only way to deal
with those laws, if they did not approve of them,
was to send new members who would act
upon them to suit the views of the people.—
That was their relief; or if tlie laws were un
constitutional, the people waited until a ease
arose, until some individual was affected by
them and appeal to the courts for redress.—
Our laws operate on individuals. When in the
case of some individuals the general nuisance
of a bad law becomes a special nuisance, he may
bring it before the judiciary.
Such a suggestion was made in the Conven
tion that, framed the Constitution. The scheme
then presented was not half so bad as this; but
something like it was proposed by Mr. Ran
dolph, the elder. Iu the Convention he oflered
this resolution :
“ Resolved , That the executive and a conve
nient number of the national judiciary ought
to compose a council of revision, with authority
to examine every act of the national legislature
before a negative thereon shall be final; and
that the dissent of the said couucil shall amount
to a rejection, unless the act of the national leg
islature be again passed, or that of a particular
legislature lie again negatived, hy of the
members of each branch. ”
Here was an attempt to give a qualified veto
power, to be vested not in the judicary with the
executive, sitting as a conncil of revision upon
every law after its passage, before it had gone
into operation, belore its mischiefs were devel
oped. It found no favor with the Convention ;
it was rejected : and instead of that, the actual
veto power as it now exists, proposed by Gen
eral Pinckney, was adopted instead, divorcing
the judiciary from the consideration of such
questions, leaving them to consider a law only
when it should regularly come before them in
its execution upon a proper case aud with pro
per parties.
Your Honors will sec upon this point that I
claim that this case is premature; that the con
troversy, whatever it may be, has not yet arisen ;
for they innst show i controversy with a party,
not a controversy with the law ; they must
show an individual right, not a general public
right. Ttiis court does not sit as conservators
over public rights, and as such to guard them
in tlie very begiuniDg against the execution of
an obnoxious law. It sits only in a controver
sy after a controversy has arisen. If there was
no other objection to the case, this would be
suffisient—namely,*ihat no controversy has ever
arisen under this law with any party, citizen of
a State, public officer, or auy body else In
homely language, they have leaped before they
came to the ©tile; they have cried out before
they were hurt. • I do not say that a time may
not come, that circumstances may not arise
when, under the operation of these laws par
ties, citizens having rights iu which they are
entitled to be protected, may not bring the mat
ter here lor the decision of this court.
Whenever it is brought, the court, I trust
will not shrink from it; until it is brought’
I as fervently hope this court will not overstep
its jurisdiction. I trust the court will never
agree to take hold of such jurisdiction until it
comes regularly, and never agree to dodge it
when it does come.
Next, let me ask, upon the ordinary jurisdic
tion ol a court of equity, what sort of a case
have my learned friends here ? Equity lawyers
of great standing I know them to be, but it I
am right, if I have any conception of equity
relief, how far does their case fall short ot any
relief ever given by a court of equity ? We
may make mistakes in our anxiety to carry a
point sometimes. I think my learned friends,
as equity draughtsmen, -have done so in this
case. Considering who signs this Georgia bill
us solicitor and as counsel, 1 was very much
surprised ou examining it to fiud that there
was not so much as a prayer that the defend
ants should answer. Os course I make no
point now on the absence ol that necessary
prayer.. I simply state it to show how, in the
pursuit of a particular thing, we are apt not to
go upon tbe dictates of onr calm and sober
judgment, and sometimes to attempt to stretch
- i X.
the law further than it can go. But upon tii*i
general doctrines of equity law as to the sulji
cieucy of a bill to bring a case within the juris
diction of the court for equitable relief, let. us
look for a moment at this bill.
This is a bill in equity brought by a Stale. j
admit that a State can sue in equity and at R .
It is a bill by a State to vindicate its pol'
rights. The State of Georgia here coir 1 . j
court alleging that it is a State, piss.. .
matter in issue. I do not make r■ " *.. ‘
now as to a court of equity bein', . „ "
decide whether a State is in th
ment of its political fmncb> se8 °
men allege, and ask your ’Honors to find tiiat
M?c O Je , h l \s OW,i H :UC °' this Union. If’they
dinfii . «“,* of fact, l have a right to
. f* u ! k1 . w ‘ at ia the consequence? If this
a Slat! . B|iCllC'“ 8 | iC l lC '“ to decide that Georgia is
the same jurisdiction to de
noiiii! .i' a is not a State, and that great
P.® , tK a , State or not a State, is set
-1 ,’.t wwf -‘ e<l forev ‘ !r - l *y this court,
has cLTn 1 n c Xty 11 > a lh ; ged that Georgia
also n o I! I>O U,c:a ri «hts and privileges, and
vlr*wAii 1 ? ba ® certa ’ n * property. I can see
r * 'Jhere my learned friends were tend-
I mg when they came 1,0 that part of the case. I
that they had at least some inkling of
, of .•mHMMn 1 *? °r hanging a Slate into a court
. frineh 1 vindicate its political rights and tlie
Irancliises and lights of fts. citizens. They saw
, that there was no precedent for bucli a proceed
ing as that. They saw the necessity of fouu<!-
Ih*’ l,. 1 ”jurisdiction of the court upon
- the State of Georgia as a corporation, and as a
i corporation whose franchises and rights were
< cbout he disturbed, aud therefore entitled to
- preventive relief, as an individual would be to
t protect his property and his rights from irre
- parable misehief and injury. But, it
h mentioned that the State owns lands, it is
i lot claimed that auyhody is going to take those
i 1 m as; it docs not appear that anybody lias
(reeled a nuisance on those lands, or is about
' lo.erectone. It does not appear that auybody
f. i-: about to bring suit in regard to those lands,
, ;nd tiiat it is necessary to stop litigation and
t prevent the State being vexed by suits. It is
j i imply alleged that the State has Wh lands
i hese military officers do not propose to take
the lap.ds, gtj)- can they take them. What, then,
s i i the dagger tp thgse lapds ? It is, as 1 under
- Hand, that if filially these acts are consummated
t. --if dually there is a new eonefitutiou provided
) lor Georgia and ratified hy the people of Geor
> i ia, which new constitution becomes tfie con
■ t titution of that State—the present organism of
, Georgia ceases, the present. Slate government is
- i isplaced and loses its hold of these lands. —
• Then where do they go ? Who does the present
, government hold them for ? For the people of
Georgia or for public uses ? If a new coustitu
• i ton shaft come into operation and be ratified
by the people of Georgia, the new government
will hold these Jandt tor tfig purposes—
. not for waste, aot for destruction, not for
i 'hanging their destination, not, as in tlie case
■ of a charity, to devote them to other uses, not,
f ns in the case of the proptrty of a private cor
: poration, to turn them to other uses and to the
■ purposes of a foreign eorporation, but at last,
change tbe form of governtpent as you please,
t the people of the State of Georgia will own all
■ their lands, undisturbed in any way, if these
lews are carried out.
Before we eyen toqeh these lauds, before we
i touch a single one of these rights qf Georgia,
; this court is asked to interpose. Aud what is
> it asked to do ? I take a distinction between
matters that lie in the choice or discretion of
i i,he commanding general as to the extent to
, which hp irift eyecqto military law there and
i other matters. He has sjinpiy said, f will ex
ecute the law.” Now, he can execute it in two
ways. He can execute it by making it a mili
tary despotism at once, by 7 unshipping all tlie
civil tribunals, courts and officers, or lie can
i execute tbe law just as well by leaving them all
untouched. It is not alleged that Pope tbreat
i ens that he is going to displace the Governor,
the Legislature, the courts, the executive offi
cers, the whole machinery of civil government
• in Georgia. He lias simply said tiiat, lie will
execute the law. Whether lie will execute it hy
the rigor of martial rule, displacing the civil
; authorities, or execute it by leaving thepi all in
■ perfect play, lie has ueyer said. The first prae
■ tieal tiling to lie done Under these luiys Is the
appointment ol boards qf registry to make a
, registration of voters, preparatory to the elec
i tion. That is the initiatory step, it has not yet
■ been taken, hut it is to lie taken, and the espe
;■ cial prayer of this injunction is to stop that very
! thing, with a series of others that are to follow
I afterward.
r Here is an attempt to induce a court of equity
, to stop an election—a political election ;to pre
i vent the registration of voters by a decree of a
court of equity before any registration is made.
■ Tlie evil lies away beyond that ; the evil is not
■ iu registering the voters, hut in something tiiat
the voters are afterward to do, and something
that ttie convention js afterward to do, and
, something that Is to he the result. Os all these
■ labors. But these things have not yet hap
• pened, and my friends propose to begin by ask
i ing you to stop the registration of voters. They
i say they can have no adequate relief against
> tiiat registration, and the evils tiiat lie beyond,
i except in a court of equity. They cannot wait
until the laws are executed, but they must have
t relief nmj, prospectively, before they are put
t into execution ; and the first tiling this court is
i to do is to stop the registration. I have heard
-of a great many 1 'ls m equity, in various
States, but 1 never before heard that it was tins
r function of a court of equity to stop an elec
tion. What are (lie consequences of an clcc
-7 tion ? To make officers and invest them witli
> powers. If these officers and these powers are
i going to invade any rights, they are (lie right
> of other officers legally executing some power.
- Do we go to a court of equity to be relieved
■ against an officer elected ? Take tlie case of an
’ officer illegally elected at an illegal election.
• Being so elected, lie lias no right to intrude
• upon the legal officer ; lint is that a case for a
court of equity ? 1 never dreamt of it. It is a
’■ case for a quo warranto.
But these defendants cannot compel the reg
istration. These laws compel no man in Geor
gia, black or white, to he registered ; nor do
they authorize the military commander to seize
and punish any one for not going to the elec
tion. ft is left entirely to the citizens to decide
for themselves whether flicy shall be registered
or not. You cannot very well stop them.
What next ? An election is held. Who votes
at the election ? Just who chooses. llow do
you know that anybody is going to attend that
election ? How do you know that an election
will he ordered, or tiiat, if ordered, Georgia is
going to accept the offer made by Congress ?
The people tiiat tlie State of Georgia comes here
to protect can protect thfcmselves against all
this mischief by not going to the election,
because ttie mischief is the election of a gov
ernment that is going to displace the existing
government. But suppose the people go to
the election and vote for delegates ; the dele
gates are not obliged to go to the convention ;
there is no law to punish them lor not attend
ing. If they go, they frame a constitution. That
is left to themselves. Congress simply says
that a certain provision in regard to suffrage
must be inserted in the constitution or it will
not he recognized by the legislative department,
if the convention cannot agree, there is an end
of tlie whole proceeding ; hut if they agree and
make a constitution containing the stipulation
provided for by Congress, the people are then
to hold an election to ratify it. If the people
ratify it, it will be because they like it. It is
left to them to do it or not. If they do if, the
t ext step is to send the constitution to the
President, and by him it is to be sent to Con
gress, and then Congress is to act.
These things all lie in the unknown and un
ascertained future. The appointing of boards
of registration lies within the power of the
military commander; but beyond that every
hing is choice, everything is election ; things
may happen, things may not happen, jnst ac
cording to the .temper and disposition of the
people who are to act. As. yet not one of ns is
so wise as to see into that future and know
what is to happen, or whether the mischiefs that
-hese gentlemen see in the distance are ever to
mke bodily shape. As yet the case is like the
iroam of the poet. It has nothing of local hab
itation. nothing of substance in it, and yet it is
said to be a ease for a court of equity. The
court does not sit for the purpose of deciding
questions uncertain, questions contingent, ques
tions that may be carried out in one way or an
other way. Courts sit for things practical, for
rights ascertained, for injuries committed to
things in shape, in substance, tangible. It
must be a thing in rerum ncCtura, and there
must be a practical threat to injure that thing,
before t he preventive power of a court of equi
ty can be invoked. Now, I say to my learned
friends tiiat their whole ease is uncertain, con
tingent. They say there is mischief in the fu
ture, bufwhether it will come no mortal man
knows or can'see. This point was illustrated
by references to cases of contingent interests
and possibilities, which have been held not to
be cognizable by a court of equitv for preven
tive relief.
If the Conrt please, I have aperhaps spent
time enough on these points, and I now come
to the last point, which is, that we have, after
all, nothing but a political case. Now, suppose
that the mischiefs which they say will be con
summated are consummated; suppose that
what is proposed to be done is done, and all
that is future and contingent becomes actnal
and past, and a constitution is framed under .
these laws and is ratified and accepted by Con- i
gress as the constitution of Georgia, and then
an appeal is made to your Honors not to pre- i
vent Imt to restore, t° lteep, to preserve the .
light ol the contesting State organization as the .
State government of Georgia—what sort of a I
questiou would your Honors then encounter ? ,
Just the same as you encountered in the Dorr
case, Luther vs. Borden, precisely. A new
constitution formed by the people of a State
under the authority of these acts, and an older
State constitution formed by the people under
due authority, as they allege—these two sov
ereignties at. once enter Into a contest for ■
supremacy. Is that a sort or controversy which
your Honors cau decide as a court of equity ? i
In the first place, they will not stop to come to
a court of equity ; they will settle that hy farce ,
The old Slate government, if it is a legal one
lms a right to resist any usurped government
that pretends to be the State. If that usurped i
government brings against it a force that it
cannot withstand, what then is its remedy ? To j
come to a court of equit y to ask them to enjoin
the advance of the honti le loree; to say to the
eorD ',uanding general: “You shall stop your
®'.irch, we hold that, you are not the rightful
government; this othor is.” The Constitution
contemplates exactly Hint state of things. If
the existing State government ot Georgia,
which these gentlemen represent, is the legal
State, it will remain the legal State notwith
standing these laws. If, as they say, those laws
are unconstitutional and void, no authority
given under them can ever prejudice the Stale.
Is there no- remedy ? If the new constitution is
supported by an armed foree greater than the
present government can tiring against it, what
is the remedy ? A court ? No ; |>ut Congress
and the President, the political power. They
are then precisely in the situation pointed out
by the Constitution—a State in insurrection ; a
lawful State, warred upon by au unlawful, un
. authorized body claiming to be a State* using
force against foree, that the rightful Slate can
not overcome. Then comes a case for political
interference’. Then Congress and the President
must decide which ol these two is the rightful
State ; and when they decide it, it is decided for
your liouors and for all, for that is the only tri
bunal that can decide it.
Citations were made from the eases of New
. York vs. Connecticut (4 Dallas, 4,> and Rhode
Island vs. Massachusetts, (113 Peters, (>57,) to
show that the Supreme Court entertained ju
risdiction of those eases, involving questions
of .boundary, because a right to land was in
dispute. Tiie fact that political questions
were involved - was a mere incident. The case
of the Cherokee Nation vs. Georgia (5 Peters,
- 14) was au attempt by the Cherokees as-a sepa
-1 rate nation to prevent Lhe execution of certain
laws of Gecfrgia violating their rights secured
by treaty, hut the court declined to interfere
in tliis way. In the ease ot Osborne vs. the
Rank of the UniteiTtit itcs, as an injunction had
been sustained to prevent the collection of a
Btate tax on the shares of the bank ; but that
was a private corporation, and the remedy ap
plied was the only one to reach the case; so
(hat there was po parallel between that instance
; ud the present one. It the Wheeling BridgS
case was cited, it must be remembered that the
ftiate of Pennsylvania was granted relief, not
because of her political character, but because
she was the owner of canals and railroads ter
minating at Pittsburg, costing her treasury
•many millions, which, it was held, would be
irreparably injured by the bridge. Have the
gentlemen any such case V Not at all. Prom
h .‘ginning to end I can see no ground upon
which anything tike judicial cognizance eau lie
founded by any power of this court. The
great, stubborn question which now unhappily
agitates the country from one end to the other
cauuot be settled by the judgment of this
court. It will In; finally settled, and I hope
rightly ; but when I come to argue it, 1 must
go to another forum, to another tribunal than
this, foj'get fpr the time that T am a lawyer,
and argue it altogether as a citizen.
ARGUMENT OF CHARLE3 O’OONOR, ESQ-
Mr. O’Conor. May it please the Court, the
learned Attorney General has not failed to sug
gest every objection, of the most minor de
scription, which could be urged against the bill
filed in behalf ot the State of Georgia, lie has
observed, that considering the grave lawyers
engaged in the ease, it is rather singular that
tlio bill does not contain even a prayer that the
defendants answer. The bill commences with
Ihe statement that it is filed by the. State ot
Georgia against these three defendants, and
complains ot them, and concludes with the
i ommon, ordinary prayer for a subpo)ua, as
well as a preliminary writ of injunction di
rected to [hese parties, commanding them to be
and appear, and tq stand to, obey, abide, and
perform such order and decree in Hie premises
as to your Honors shall seem meet, and shall be
agreeable to equity, it is not unusual in the
common form to insert, answer the pre
mises hut that is the merest lorm, and when
suggested by the Attorney General, it appeared
to he suggested with some sense that it was un
worthy of birr) and of the ease. If it be a form
at all, it can be readily amended, and, certainly,
it is a matter that does not belong to a motion
to dismiss the suit, for want ol jurisdiction.
Again; the learned Attorney General bus sug
gested tied, this bill, in prayi ugYo i this injunc
tion, hits sought to enjoin in general terms, by
the preliminary injunction, all and every act
that might be resorted to for tiie purpose ol
executing these acts oI Congress, which lie lias
called laws, but which i call acts—not lawful
acts, but unlawful acts. lie has overlooked the
circumstance, even in tliis minute investigation
of the mere attorneyship ol this complaint,
that two distinct preliminary injunctions are
prayed for—one in general terms hirhiddijig
any thing to oe done towards tfie execution of
these aets ; the other specially selecting the par
ticular acts whence the mischief sought to be
prevented must draw its life and origin, and
stopping, as was very correct certainly, when
it Imd designated lltoso particular acts, anil
making no effort to enjoin or to prevent ulterior
or subsequent acts by high departments of the
Government, whose action is entirely beyond
the .jurisdiction ol tliis court. It will be seen
that the iifca of the pleader was, that if this!
court wouhfsee that fiieac acta wore in their*
whole length and breadth, in every single thing;
directed to be done under them, utterly void!
and uneQiinUXntioual, some minor details, which'
might of themselves lie valid if standing ajoue,
were altogether and purely auxiliary and lead
ing to tiie other, aud therefore to he regarded
as unimportant and insignificant in themselves,
so that the court might order the injuftion in
general terms, and it there was a technical dif
ficulty in that respect, or It would be improper
to deal in that manner with those acts, then
the particular things proposed to be done, and
from which the evil was to enstie, were speci
fied as the subjects of a particular injunction;
aud the prayer is, that the court grant hot It or
one of these injunctions. If the counsel who
may have participated in framing tliis Dili have
been as wise in action as counsel as they have
been accurate in their mere composition as at
torneys or pleaders, in the judgment of this
court, we shall certainly escape pretty effectu
ally from the weight of the argument which
lias been offered against ns. «
Tiie disavowal of the learned Attorney Gene
ral of any sympathy with these acts, with their
aim, motive, or method, must have much effect
to disarm any observations that it might be
proper for us’otherwise to make byway of ex
posing to condemnation tiie tenor of these acts
aud the objects they have in view, looking to
Hie general nature of that object, liutthe great
point, and wiiat may be called tiie first point in
bis argument is, that looking to the frame of
this bill and its objects, there is no evil pointed
out, and there is no right sought to lie reme
died, falling within the ordinary cognizance of
a court of.equlty. It is said that we eau suffer
no injury, because the existing government is
not to be abolished, and nothing can happen
under these a< ts.of a mischievous character ex
cept those things which are hereafter to ensue,
if at all under the action of Congress after a
convention has been held, and a constitution
formed, and a government framed uuder it.
Now, 1 humbly submit that the learned coun
sel has not stated with precision the effect and
operation of these acts. They do provide lor
something ulterior and beyond the holding of a
convention, aud the creation of a State govern
ment with its regular legislature under the •
same. They do make provision for a report of
these facts to the President and to Congress,
and for the admission of representatives from
that newly created government into the halls of
Congress ; and that we do not seek to enjoin.
But it is a mistake to say that the acts produce
no effect until this new State is thus admitted
through its representatives to the balls of Con
gress. That is a reward, a promise held out,
provided the State government and its legisla
ture shall exist under a constitution approved
by Congress. But, independently of all such
action as this, these aets not only establish a
military government, which the learned coun
sel says is in some sense discretionary, so far
t-,3 its exercise agaiDst individuals is concerned,
but it authorizes and directs—it commands—
tae holding ot an election, and the holding of a
convention in ease the electors vote for it, and
the establishment of a new Stale government;
and the first act further declares that, until
these States shall be thus admitted into Con
gress, any civil government that may exist
therein shall be deemed provisional only ; and
it provides that in all elections to any office un
der such provisional governments, all persons
shall be entitled to vote, and none others, who
are entitled to vote under the provisions of the
fifth section of that act, and those persons are
tiie enrolled and registered voters admitted by
the act, and voting at elections held, not by tbe
State officers, but under the direction ot the
commanding general and by officers appointed
by him. 1
The effect is to restrain at once the holding 1
of any election within the State for any officers
of the present State government by any of the
State authorities, directing all future.elections i
in the State to beheld under the direction of, ]
and by officers appointed by, the military com- i
raander ; and directing that all persons of cer- i
tain classes described shall be the electors per- '
raitted to vote at such election. It is, there
fore, in the language of our bill, an immediate i
paralyzing of all the authority aud power of the j
State government by military force. That is
plainly setting aside the present State govern- (
ment and depriving it of the necessary means )
of continuing its existence. It is substituting ’
in its place a new government, either pro
visional or otherwise, to be created under a new
constitution, and to be elected by a new and in
dependent class of electors. What is the effect <
of this upon the State government and upon the •'
State now existing? The effect is precisely the <
same as if, in the ease oi a private, corporation, . i
which could only keep up its existence liy re- ]
gular periodical elections by its stockholders, 1
the persons having an interest in it, the owners j
of its franchise, and the right to perpetuate it, >
they were forbidden to vote, deprived of the 1
right, or a large nuinlier of them were deprived •
of the right, and a mass ol persons having no 1
right whatever were introduced—for instance, ‘
the inhabitants of Hie various towns through >
which a company runs its railroad. This is a >
direct attack upon the constitution of the cor- *
poration in the ease supposed—a direct attack 1
upon the constitution and fundamental law of '
the State in the case before your Honors.
In the case before your Honors it may be of i
importance that It should be understood at the <
outset what we mean by a State. We claim
that a State consists at all times of the persons
in wtioin reposes tiie ultimate sovereignty or
dominion, which ever name may he given to it,
the sole power of government within that
Shite. In oilier words, cacti State of this
UuiOD, and every republican State, consists of
tbe whole body of electors, those who by the
established fundamental law.of the State have
in them the entire power of government. Atl
other persons are under the protection of Hie
laws, to be sure, and are entitled to the advan
tages of the government; and bestowing those
advantages is a duty devolving upon those who
possess the political power. But the political
power and the State, in a political judicial sense,
recognized in courts of justice as a body poli
tic, iu which capacity alone it may appear and
act, is composed of what is sometimes called
the great body ol the people, but which, to he
definite, and tor tlio present purpose, I will de
signate as tiie electoral body—those who vote
for the legislature as tiie foundation of all laws
existing in tiie State government.
The State of Georgia stands before this court
as being a Slate in its political capacity and as
capable of judicial recognition, Composed ex
clusively from its very beginning to the present
time, and uuder its constitution of 1805, of
white male citizens above the age ot twenty-one
years, who have performed the ordinary duties
enjoined by the State in contributing to the
burdens ol the State government in the manner
provided by law, as tar as they have bad au op
portunity of so doing. There in that State, ac
cording to the ceususea ivbieb have beeu taken,
a population, composed of persons who never
had these qualities, who are not members of the
State, nearly equal to the white population;
and the question before this court is, whether
they Can believe what is asserted in tliis coiu-
I laint, that if the door is opened to these per
sons, they will exercise the privilege of seizing
i pon the government, grasping the political
| ower, and constituting a new and different
Slate altogether from that which has herctolorc
i xisted, and wipe out of existence the Georgia
< 1 177(5 and the Georgia of to-day, with all her
corporate rights and franchises as a body poli
te. This is the question. Whether that is not
fa evil in law which can be perceived and ap
-1 reciated by tbe court, a deprivation of right
rested in that State, in respect of which the
t late is entitled to protection from some qnar-
I ?r, 1 submit with confidence to tbe intelligence
cf those who hear me.
I assume, then, upon the strength of the au
thorities and the argument which your Honors
t. ill find upon the filitli and following pages of
our brief, that- Georgia is in the attitude of a
body politic, consisting of the persons to whom
1 refer ; and that if these persona are derived
( f the privilege of continuing their govern-
Inent aud a new mass are introduced, and a
Urge portion of ‘the others excluded, what
would be.regarded in the case of any other cor
poration as the extinction of the existing cor
porate hody and the substitution in its stead
or another, is to be effected by these acts, anti
is an evil of which any small corporation would
Lave’a right to complain to some tribunal at
least, and in respect to which we claim that a
‘state of this Union may claim protection some
what. In order t.,j sbow that the State of Geor
gia occupies iu judicial consideration the atti
tude of a body politic and corporate, so that
she may come into a court ot justice and claim
to protect her rights, it the machinery of the
court is adequate to that purpose, 1 refer to
what was said by Judge Wilson, in Chisholm
vs. the State ot Georgia, 2d Dallas, page 455.
Tbe same idea of a State tbere expressed is re
peated liy Judge Bronson, in Illinois vs. Dela
fleld, 2 Hill, 162.
This being tfie State ot Georgia, and this
being one that would thus totally alter the con
stituent body, and virtually set aside ttie pre
sent State and introduce a new one, is it within
the ordinary course of a judicial court and a
court of equity, by equity process, to preserve
and defend a right of that description ? Noth
ing can be clearer than this. It is a settled ju
risdiction of equity to restrain, by injunction,
any attempt to subvert a corporation, to divert
its property to other uses, or to violate its char
ter. An illustration is to tie found in the ease
of Ward vs. The Society of Attorneys, 1 (Jolb
yer’s New < Sues in Chancery, page 573, where
essentially the precise evil iu its juridical char
acter of whieli we complain here was attempt
ed, contrary to the charter of tiie society. It
was a society framed for tiie purpose oT im
proving aiul educating tiie class of attorneys
aud those who were studying for the profession.
It was proposed to admit into the benefits and
privileges of the society tiie community at large,
ft might be said to be extending tiie advantage
to a greater numb t, which is the quality that
gives all the merit to tliis proceeding that can
be claimed for it. The court there laid down
the doctrine that not only is a corporation en
titled to preserve its existence, lint is entitled,
either by itself or any ol its members, to come
into a court of equity and there to claim, by the
process of injunction, to protect itself against
acts that would prevent it from preserving its
constitution and continuing its existence.
Shall we. bo told that in a court of equity hav
ing jurisdiction between the parties, the pettiest
! corporation in Britain or iu this country cannot,
f com* before tie’' court liy its hill in equity and
l say that persons having power to do it, and ca-
I palile of doing it, unless restrained, are about
to prevent, and have declared they will prevent,
our holding our election upon the charter day,
which is iudispeusable to tlio protection of our
corporate existence, and are about to hold an
election themselves and substitute a new body
in our stead ? But, particularly, placing it, as I
do, in reference to thfec aets, on the refusal to
permit tiie election to be held upon the charter
day—a tiling indispensable to combining iu ex
istence the corporate body—l ask* would not a
court of equity allow at! injunction to restrain
and prevent that act if the circumstances were
such that there was a serious reason to appre
hend that it would be performed? I submit
that no proposition upon the authority can lie
clearer than that; and the ground of the juris
diction of a court of equity in such a ease
may well be compared with thy* action of courts
of law to the corelatiye of tliis artificial person
--a corporation— namely an individual person.
An individual who is threatened with injury to
his person, to his liberty, to his life, is not al
lowed to come into a court of equity to seek
relief against it. And why ? Because the
criminal law of.the land on the common-law
side of the courts—as all criminal laws must be
administered on what we call the common-law
side —give a lqau his sureties for the peace, ai|d
enable him to imprison the person who threat
ens him an injury. It the injury be perpetrated,
failing short of actual loss of life, he has his
remedy by action at law, because lie lives to
bring it. He has has his remedy by an indict
ment, because the law of the- ■ land will give
that remedy ; aud if slain outright, be will be
avenged-by his competent successor, the people
of his country, who survive him. Bnt in the
ease of a corporation there is no criminal law,
there is no criminal administration, and no
civil common-law process whereby it can be
saved from an action that would terminate its
existence ; or a prevention whieli would ter
minate its existence. Its remedy,, its only
remedy, is to go into a conrt of equity, show
the impending danger, show the necessity of
its beiDg permitted to exercise its franchise,
3nd obtain an injunction to restraiu the indl
•vidual or individuals who woiild prevent that
set. This doctrine is nilly sustained by the
Ceoision of this court in Dodge vs. Woolscy, 18
Howard, p. 341.
Now, if Georgia cannot hold her election, her
government becomes extinct; her people, those
Who now constitute the State, have no longer
auy representatives who can act ip their behalf;
as a corporate entity the State is extinguished,
and as a corporate association the people cease
to exist. For such a purpose, I ask, is not an
appeal to a court of equity the proper and ap
propriate remedy ? Is it not the only remedy
under the equity system as applicable to miuor
corporations? Andisituot the only remedy
under the equity system of this tribunal as ap
plicable to these great corporations that come
liere under the Constitution by which this tribu
nal was formed and erected, who have secured
in that Constitution the right to maintain an ac
tion in this court against the people of any
other State than their own who may invade any
right of theirs ? I ask whether it is not precise
ly the appropriate remedy for that greater cor
poration, a State of the American Union, in or
der to guard against its threatened extinction
by means which are unconstitutional and un
lawful ?
But it is said that we have not proper and
competent parties; that here is a suit against
Mr. Stanton, General Grant and General Pope,
who happen to be citizens of other States.—
Bnt, says the learned counsel, if they happen
to be citizens of the District of Columbia or of
some Territory, the State would have no reme
dy in this court, and would be obliged to go
without any. Now, with great repect, that is a
very narrow view of the subject. The Consti
tution of the United States has undertaken to
protect these States against foreign invasion at
all events, ft has undertaken to protect them
against domestic violence, on application, and
not otherwise, of the Legislature, or of the
Governor when the Legislature is not sitting—
referring, of course, to the existing govern
ment of the State. Otherwise, the General
Government has not undertaken, nor does it
seem to have been contemplated that it would
interfere with domestic troubles occurring
within the body of a State. As to them, the
State was deemed competent to take care of
them unless they rose to a very great pitch of
violence, so as to become what we commonly
call a» insurrection, which tbe government of
a State cannot, with its ordinary means, put
down. The Constitution seems to have sup
posed that Hie States could deal efficiently with
their own citizens, and has given them no priv
ilege of suing their own citizens in this court,
but has only given the privilege of suing sister
States, foreign States, tiie subjects of foreign
States, or citizens of sister States. It is true
that the framers of the Constitution do not seem
to have been so cautious as to take into their
consideration this nice exception that, by possi
bility, there might be some people living within I
the district, ten miles square or lees, that might ,
be ceded to Congress for the seat .of govern- i
ment, who would not be the citizens ol any
State, and therefore, not provided lor by this
provision. -Neither do they seem to have taken
into consideration that there ever would be any
considerable number ot persons in the whole
l world, other than citizens of the menaced State,
• against which the Shite would have any cause
r of complaint that it would desire to redress,
, except their fellow-citizens of other States of
t the Union, or strangers who were subject to
s foreign nations. This a little bit of a casus
f omissus—a trifling evil that might possibly ex
e ist, but yet never has arisen—never has existed
- —for whieli the Constitution did not expressly
1 provide; but tbe Constitution did provide that
s a Stale should have a judicial remedy against
- any individuals who were beyond the reach of
a its power ami process, who might do it an in
-1 jury, and of course who might menace au inju
-1 ry. If these were invaders, the General Gov
, ernmeut, through its political department, was
- to resist them. If they were individuals who
1 did not come with the strong hand of invasion,
1 the Sjatc was to liaVe, as a means of protection
b against unlawful acts, the right ol coming into
- the Supreme Court of the United States and
c .appealing to it as the original tribunal. This,
< right is given in the Constitution itself. This
is tiie court of first instance into which the
t State is to come. What is it to have hero ? All
s the remedies for the enforcement of its rights
- that are usual and customary according to the
t. laws ol the parent State, and Hie existing laws
f of the colonies as they were, aud the laws of
e these States during the short period they had
s existed as States, there were allowed iu courts
i) in cases at law or m equity.
r A State of the Union, then, is a hody politic
- and corporate, which is unable, like other
- States intended to be permanent and indcstruct
, ible, to protect itself by any violent means
r against those outside of its territory. In lieu
i) ot that, the Federal Government is required to
; protect it against violence and invasion, 't'he
r liigfi equity tribunal, tiie Supreme Court of tbe
- Uuited States, is obliged by the terms of the
- Constitution, it any State eau show a ease of
; an injury doue or meditated, remediable by the
I ordinary process of a court of equity against
t any one ouftide of their jurisdiction, and bc
• youd their reach by their own courts and prn
i cesses, to give them such remedy as is usual
r iu such eases.
My learned friend’s remarks about the rejee
t tiou in the convention of the proposition for a
- council of revision offer no objection to the ju
l riedietion of the court in this case. He says
i this court was thereby divorced from political
- questions. Not so at all. This court was di
-3 voiced from any participation, iu any shape,
iu legislation ; or, at least, legislative power
- was not conferred on it. The jurisdiction of
' the court, as a court created under the Consti
t tution, was, of course, intended to apply to all
i questions with which the court was capable ot
i dealing. My learned friend has spoken of a
I quo warranto as being the property remedy.
- There can be no quo warranto in this conrt
i noon the Governor of a State for exercising
: Ills powers. That is a State office, aud I ap
prehend that a quo warranto by the judiciary of
- a State against its Governor would'be very
1 much like that which my friend condemned
I tbe other day—a writ issuing out of the court
I against the Chief Executive.
My learned friend has said much about all
i this evil being contingent and future; but wc
- have presented, plainly and distinctly, facts that
• cannot be denied, aud have 'not beeu denied.—
The President says he will execute these aets.
General Grant has issued an order, that is set
i forth iu the bill, to the commanders of these
! various districts, transmitting to them copies
i of the aets, and declaring that they are to be
i carried into execution. The minor officers have
declared their intention to execute them. My
learned friend says that the conrt will not act
upon fears and apprehensions, 'l’his fact is
quite otherwise. A bill quia timet is one of the
very heads of equity jurisdiction, it must, to
be sure, be a stable and substantial fear ; but
when the Executive of the United States de
clares that he will execute a certain set of pro
visions, when his General-in-Chief declares that
: he will execute them, when that necessarily in
volves the bringing into play of the whole mili
tary force ot the Union against a particular
, State, shall it be said that the fears are not sub
stantial ?
My learned friend has suggested the lack of
precedent!) as a difficulty. The lack'of prece
dents as to what? Not a lack of precedents
that a Stale may sue in tliis court for the pro
tection of its mere franchises as a State, tor the
assertion of its sovereign authority over terri
tory, or of its government authority ami politi
cal authority, if the word “sovereign” is not
i considered appropriate. The decisions are
, numberless, I may say, that a Stale may bring
such a suit. But lie says that if a State could
, bring 'such a suit against au individual, we
! should have bad a great many more instances.
. No individual has ever before iu this manner
attempted to assail a State, and it may be hoped
i that no individual ever will again if this court
lay down the law and enforce the Constitution
as we suppose them to exist. The lack ol pre
> cedents is only an evidence of the enormity (I
; Hie.act whjch is now brought wilder the ohser
, vation ol the court.
i Again ;my learned friend finally conies to
what is his grand point in tliis ease, that the
• subject-matter of the bill, tiie ease staled, and
, the relief sought arc political in their nature,
. and lie states that the ease is nearly like Dorr’s
ease, I.uthcr vs. Borden, reported in 7th Jlow
■ ard. In that case the precise thing was done
by Dorr and his adliel-ents which these acts in
i the present instance seek to perform. There
, was a State government hi the hands ot a por
• tiou of the people, of that .State constituting its
whole electoral body. Dorr was of opinion,
and his adherents hacked him iu it, that a
greater number of electors ought to he admil
i ted, and lie, therefore, undertook by sponta
■ neons meetings to erect an independent State
■ government. lie failed in so doing. This
i court decided that it was no government, but
that the original chartered government whieli
i there existed was the legitimate and lawful gov
ernment ; and consequently Dorr failed, lie
, failed, I trust, not through any oilier cause than
i the intrinsic injustice, impropriety, and illegal!
ty of his course. The very same reasons
would lead to the overthrow of these acts of
, Congress.
Bi|t the great bugbear with whieli it is sup
posed this court can be driven from its propri
ety is, that tliis is a political question, and, if I
understand the tenor ot the anpiiuent, it is,
that is a political question in the vulgar sense
of the word “ political;” that it touches party
politics. I humbly apprehend that that is no
objection to tiie court entertaining jurisdiction.
What so common as fora court of justice to be
obliged to pass in that sense upon a purely po
litical question ? He admitted that the court
had no political power—indeed, no physical
power—and was compelled to rely on the ex
ecutive authority for the faithful execution of
its judgments. If the subject-matter of a suit
be one which tbe process of the court i 3 ade
quate to reach, and it the right claimed be a
legal right, or if the wrong complained of be
ol a character susceptible of being relieved
against, there is no objection arising from the
delicacy or difficulty of (be questions that may
be presented, or the passions which the decis
ion of those questions may ebance to excite.
The writ of habeas corpus was an instance.
The operation of that writ was to arraign ex
ecutive power and to determine the validity of
executive aets. Brize cases were another illus
tration. So were cases between Stales as to
boundary. The cose of Kendall was cited, and
the power to issue an injunction as well as a
mandamus commented on by a reference to
English eases aud to Drewry on Injunctions.
The doctrine was asserted, that whilst the judi
ciary cannot touch Congress, cannot obliterate
its acts, however unconstitutional; while it
cannot touch the person of the Chief Magis
trate, they can protect the rights of any indi
vidual showing in other respects a right to their
interposition in his behalf against an act of
Congress which is not a law, which is void, and
against any unlawful action attempted under it.
We have shown by the cases cited that the
highest officers in England are enjoined; we
have shown by the ease cited there and here
that by injunction and mandamus the highest
subordinate officers of the executive depart
ment are enjoined and commanded. There is
an imperious necessity, we admit, not applica
ble to any other department of the Govern
.raent, and arising from the unity of the Execu
tive, that the Executive person, so long as he
holds that office, should be exempt from the
coercive process of the court; but that is no
reason why the court thould not pronounce its
judgments and use its process to coerce subor
dinate officers, admonishing them of what is
the law. I admit that such an admonition,
when pronounced by the court and delivered
by its precept to a subordinate officer of the
Executive, cannot be enforced if the President
chooses to stand in the way and prevent its
execution. I say that it is a heresy of the most
palpable description even to talk about the
court having or not having the power to exe
cute its decrees. No court of justice in a free
country ever had the power to execute its de
crees. Every court must look to the executive
department, not to give it means to carry its
decrees into execution, but through his subor
dinates, and by the physical force at his com
mand, to execute them. The court may be
Raid to be more than, as it were, the brain, the
judgment, the intellectual power of the nation.
It examines a question; it decides the ques
tion ; it states what ought to be done in a given
case by reason of that decision ; and for the
rest, for execution, it leaves it to the executive
department. The books from which the prin
ciples ot our jurisprudence and political science
are drawn around with invectives against such
an idea as a conrt, a judicial tribunal, having
power to execute its decrees. We are told that
for the same body or the same individual to de
clare what is the law and to execute the law is
the very definition of a tyrant. It is exactly what
we witness in barbarous and seiui-barbarous
climes. The sovereign is tiie law-maker ;he is
the law expouuder, and with barbarous pas
sious he executes the law, often with his own
hands. Nothing is more unfounded and irra
tional than to say “Wc will not exercise juris
diction, bocausc tiie executive power of tiie
Government, if it sees fit, instead of doing its
duty and enforcing our decree, may 6et our de
cree at defiance.” Nothing is more subversive
of sound principle. Such a proposition never
affords the slightest reason lor Withholding the
exercise of jurisdiction. It lias often been said i
of courts of justice that, generally speaking, j
their decrees execute themselves. Such, indeed,' <
was the case iu all these questions ot boundary! i
The court had but to declare the line, aud all ]
, the political consequences followed. Sttein this
3 case, your Honors’ decree will execute lftelf.-w
--, Award the writ of Injunction, and what may be
f called an executive officer—though, to be sure,
3 appointed by yourselves —your clerk —issues it
s 'as a sort of announcement of what your jiulg
- ment is, and it become the duty of the Exeou
-1 tive to carry it into execution. If ho fails in bis
y duty and refuses to execute it, your office is
t performed; you have redeemed all your obliga
t lions to the Constitution, and the peril and the
f consequences, t he. evil and the punishment—the
- odium of the present day and the shame that
- will fall upon tlie wrongdoer by the impartial
- voice of the disinterested world and of a pos
s terity that will be removed from the. passions
3 of the present day—all pass by your Honors
, and touch you not; they rest upon the ICxecu
i live, who violated the law.
t The Constitution declares that he is hound to
1 sec the laws faithfully executed; not to see
s every act of Congress faithfully executed, But
3 the laws. In seeing the laws faithfully execut
e ed, he must of course carry into execution the
1 judgments of courts of competent jurisdiction
s pronounced upon cases within their jurisdic
e tion. And when his Cost master General is
s directed to make an entry as in the Kendall
f ease, or when his subordinate, Mr. Stanton, is
1 directed, as in the present case, not to issue an
5 order to carry into execution these acts of Con
gress, it is bis bounded duty (bowing bis judg
e ment. to that tribunal to which is distinctly com
r milted by the Constitution in the last resort
- the determination of all questions as to the
s validity of acts of Congress so far as they may
i trespass upon the provisions of tile Constitu
) tion) to withhold his orders and proceed no
3 farther.
3 It lias been suggested that this court cannot
3 issue an injunction to restrain the court for the
f trial of impeachments from condemning the
3 Vrcsideut in case he should obey its mandate.—
t That is true ; but there is a higher injunction
- than any this court can issue which does re
- strain the court lor the trial ol impeachments
1 from condemning t.he President in such a ease.
The judgement of this court that the perfor
- manee of these acts in relation to holding clee
i tions for State officers through military agency
- is not warranted by the Constitution and an in
s fraction of it, and forbidding General Pope to
hold such an election, would be a judgment in
- Vi’in , i judgment upon the very point, a jndg
, ment . di. •iactly pronounced between the
• majesty o ihe American people and the Amer
l iean Cfc ablution against Andrew Johnson us
- the forms ot law and proper decorum in ad-
I ministration and necessity in fact permit. It
I would be essentially a judgment in rent, and if
i Andrew Johnson was impeached before the
court of im peach men ts* for not having carried
these acts into execution, no plea would be ue
' pessary for him except—“ I issued an order to
my officer to obey these acts ; that officer was
f subject to the jurisdiction of the Supreme
' Court; the Supreme Court is the final tribunal
to hear and determine questions touching the
. validity of an act of Congress ; the Supreme
< dnrt enjoined that officer not to execute these
l acts, and there was no way in which I could
: execute them except, by violence upon that
< co-ordinate tribunal, the Supreme Court,
because if ray officer went on and refused to
obey their directions, they would attach him;
if I forbade the marshal, my subordinate, to ex
i ecute that attachment, they would attach him ;
i and thus an unworthy, contemptible exhibition
ot conflict (rather of evatiou than conflict) on
my part would bo exhibited ; that tribunal,
which is the judge in lire case, entrusted with
flic right to decide it, Anally decided these nets
to be unconstitutional, and could do no more
than yield my obedience to the Constitution,
as Interpreted by its chosen interpreter, and no
further execute these acts, which Congress had
no authority to impose upon me.” Andrew
Jackson might have had mandamus disobeyed
in the Kendall case by transferring his Post
master General t.o some other office; hut it
would have been a violation of his duty. So
Andrew Johnson might in this ease neutralize
an injunction by removing General Pope and
substituting another military commander ; but
this would lie a violation ol bis duty.
A letter of Mr. Madison, written in IN!>4, (4
Madison’s Works, pp. ‘Hit, 350,) was quoted to
show that the Supreme Court was the filial ar
b ter ol constitutional questions.
It may he entirely clear that if this court
should issue its injunction to restrain the sub
ordinate officers of the President, unless he
overrode its orders lie might be condemned by
the court for llii: trial of impeachments. It. is
generally true, iio\#ever, that the body which
would be obliged to initiate, and Anally to de
termine, that prosecution, lias, in virtue of its
legislative power, ample means to do a great
many worse things than that.. By repealing
old laws and by exacting new ones, we do not
i deny that it might completely paralyze the
functions of this court, and essentially deprive
it of any capacity to administer justice. But. it
is no argument, when we come, into this court
and ask it to exercise its powers within Us le
gitimate sphere under the Constitution, to say
that violent, lawless, revolutionary measures,
involving a violation on the part of the other
, departments, might by possibility lie rndueed
1 by its proceedings, and therefore that it should
refrain from performing its duty. Quite the
contrary ; it is only for the court to see that it
has a duty to perform, and to perform it. And
this brings ine to a question which lias not yet
been presented to the consideration of your
Honors—whether these acts are of a descrip
tion manifestly within the prohibitions of the
Constitution.
If the State of Georgia is not in the Union,
there, of course, is an end of this ease ; she is
not here as a competent suitor, and ttie ease
cannot lie entertained. But we have laid before
the court, in a document presented, sueli a mul
titude ot proofs ol the recognition ol Georgia
as a Stale of the Union by all the departments
of the Government—nay, of her recognition
under these very acts now sought to be avoided
by the interposition of the court—that I appre
hend it is a question that cannot lor an instant,
be enUi lained. The court must assume—the
learned counsel has not, attempted to deny—
that Georgia is a State of the Union, and, there
fore, holds tlie position which she claims in this
ease as a competent suitor.
Then, as to the constitutionality of these acts,
it will he seen that, turning its hack completely
upon the fundamental laws ol Georgia, Congress
by its absolute will undertakes to create a new
class ol electors—all male citizens t.went.y one
years of age and upwards, of whatever race,
color, or previous condition, who l,ave been
resident in the State, for twelve months. If
Georgia is not in the Union, of course the Con
stitution does uot protect her ; but if she is, she
is in it as effectually as New York, Pennsyl
vania, Ohio, or even proud Massachusetts ; aiid
is it in the power of Congress, by its own arbi
trary dictum, to enact that there shall be no fur
ther elections in any of those States lor Slate
officers ; that the government in them shall be
regarded as merely provisional, and that its
army officers, backed by Its armies, shall go into
them, and shall hold an election, by means of
which a new constitution and new State gov
ernment may he established, and define ac
cording to its will and pleasure the constituent 1
body ?
It may he said that the constituent body here 1
is very liberally defined—that it is uot subject
to the objection of unfairness or partiality.—
Nay, it may he considered that it is very impar
tial, so far as the inclusion of persons is con
cerned. It would have hoen still more impar
tial if it had said that all persons may vote,
whether residents or not. It would have been
more impartial if it had admitted felons con- 1
viet. It would have been more impartial ana
more liberal if it had admitted all the ladies. ;
It would have been more impartial and liberal 1
if it had admitted all the children down to the '
age of twelve or fourteen, or whatever age 1
would be sufficient to enable a child to walk to 1
the polls and cast his vole. But that is not the
question. We are here dealing with a question
of poyver. If Congress has power to prescribe
the qualifications of electors for State govern- *
mental officers, it may prescribe them in any '
way it pleases; and in these very acts it basun- '
dei taken to exclude a whole class, who may be 1
very good and very honest at this time, who 1
may have repented of their sins, if sins they
have committed, and to disfranchise them,
though they have never been tried for any ot
lense, or convicted by any jury, or in any man
ner, according to our knowti 6yste.ni of laws
deprived of any of their rights or claims to re 1
speet as citizens. Then, of course, if the power ‘
exists in the grqat States to which I have al- 1
luded. Congress, in addition to declaring that •
the elections shall in future bo held by its own 1
officers, may enact that any particular class '
shall he admitted and any particular class ex- 1
eluded. They may, byway of punishment 1
upon the white inhabitants of New York for 1
not granting under their constitution the fran- 1
chise to the colored people, declare them dis- 1
loyal to the morals and liberal principles of the
present day, and disfranchise the whole of
them and place the elective right exclusively in
the hands of the negroes, or exclusively in the
hands of Indians, or in any other class they
might 6ec At to select. This matter touches ,
California in a delicate point. 1 believe- that
one-seventh of the population of that State are '
Chinese, and it may happen before long that
only one-seventh of them would be anything
but Chinese. Then her sons of that race might l
be added, or they alone might be exclusively I
vested with this franchise, conferred by act of
Congress. Surely, it cannot be necessary on .
this question of power to say that an net of
Congress directing any of these things in refer
ence to t.lie States in question cannot he utterly *
void; and if void as to them, it would be equal- 1
ly void in respect to the State of Georgia, if i
she is a member of the Union. i
II the Court please, the great advantage of
our system of government is that it divides in- r
to three great co-ordinate and independent dc- t
partmculs the whole function of governing the
country, and that it makes them perfectly inde
pendent of each other. The object of their in- /
dependence is that they shall mutually check 11
and control each other, not.by the exercise of
violence of any description in the performance c
of anything that would amount to insult, hut. 1
by each duly performing its own isn't and *i
making its function felt to the extent of its
constitutional power and office. This is the t,
great bulwark contrived by the wisdom of an
cient times and carried into execution practi-1
cally by the Arm hands of the lathers of this
Republic, which constitutes, in point of fact, |
-.y f
i the only safeguard of private right and publie
- liberty. It is the only safeguard that could
s be contrived. None other is effectual-; none
, other would protect Jhc rights of minorities
1 or the rights hf individuals. Like all human
- institutions, this must lie, of course imperfect.
They have authority to cheek each other, but
i will they, as a matter <>f course V There is no
i certainty that they will. And if any one will rc
■ fleet for a moment upon the action of these dc
s partmentp, 1 think it will lie seen that nothing
j more was accomplished by this division iuto
t three departments than this, apd it is so cx
l pressed by many writers upon the subject: No
• one of these departments eaujliampie down the
i Constitution and overthrow public liberty; it
i requires the joint action of-two. Scarcely a
■ ease can lie imagined in which the joint, action
of two of them would not utterly neutralize and
> make void any attempt on the part of the third
• to protect public liberty or private rigid.
In this ease, if Congress ipid the President
■ were (if one accord, it he were half as anxious
! and willing to have this reconstruction scheme
which abolishes the States c.-in ied into cxecu
- tion as Congress is, lie could, of course, by tire ■
i means to. which 1 have referred, if Ibis tribunal
should interfere, set its injunctions and its
i writs of mandamus at defiance, and prevent
i their execution, freely, without obstruction
from this department. He could concur with
Congress aiid execute the acts. Now, under
our system, there is, as has been intimated from
; the bench of this court upon a former occasion,
i a danger that one department may of itself
alone, fttid by its own power, usurp all I,lie
powers of government and execute its will,
i thus defeating the whole scheme of this divis
ion of powers, without the calamity occurring
, of a President being found ready to acquiesce
■ in their mandate. They'have but to pass an
unlawful act, and threaten the President With
tlie impeachment, of one of their bodies and the
condemnat ion of another it be does not execute
it, and, perhaps, nine men out often in that of
fice would* iiitincdiuk-ly yield to their power,
particularly as it is not his special (unction to
decide what is or what is not constitutional.
Thus, in that, given ease, by the action of one
single department—that, as it may tie called,
small majority of one out of three—the consti
tution may be set at riangnt and public liberty
destroyed, unless there lie some mode of in
voking the aid ot the third department—the
Judiciary.
In this very case, perhaps the only case wor
thy of notice in which there lias been an at
tempt to trample upon tlie Constitution since
it was founded, we have precisely that predica
ment of things, a Congress alone, of its own
authority, putting its heel, through the instru
mentality of a President threatened with im
peachment, upon ten States of this Union and
crushing out their existence, without, as 1 say,
the aid of the President. Looking iuto the
Constitution, you liud the remedy. Looking
into the Constitution, you And it there declared
that it allows such a course of proceeding that
a third department can step in and can save tho.
President from being thus, contrary to his
judgment and to his wifi, made the instrument
of this single, usurping, domineering, lawless,
department. The great and striking case in
which any such thing as this might have been
anticipated is precisely the case where Hie power
of a great majority was called upon to crush
some minor force in the Republic—some Statq
or States in a feeble condition. Those States
being forbidden by tlie Constitution to li'ive
any other allies or friends, are allowed to come
into the Supreme Court of the United States,
and before the life is. crushed out of them
through Hie instrumentality of the equity pro
cess, which the court, is entitled to by Us nature
and foundation, and by the law of the parent
country, which we have inherited, protect them
selves to this extent, give to the President (»
perfect immunity, a perfect defense, in ease he
chooses to act virtuously,‘according to the be
lief of his mind and judgment, according to his
conscientious views of the right ot the case •
affording him a complete protection against any
action ol this Congressional body against him
through its court of impeachment, unless they
should adopt measures so monstrous and revo
lutionary that, as a matter of course, they would
in some manner be. deprived of the powers
which they would claim for a purpose un
just.
Now, if vour Honors please, it i*-. f rol)1 n, ( , B(J
views of the subject that wo contend, that, the
State of Georgia properly CP’ines here for this
remedy by which to perpetuate her own exist
ence as a State; that if she is entitled to this
process by law, your Honors have no function
to perform but, to say so, and to give it to her.
li the Kxceirlive contends with it, if the fear
of a condemnation in the court for the trial of
impeachments should be too strong and so
great (Which I cannot suppose in the case of
this eminent citizen) that lie would not dare to
stand upon the viiidietiou which your judg
ment, affords hint, very well, so lie it. Your
Honors will have done your duly. Yon will
have done ail that was in the power of the
court. You will have done all, in fact, that a
court could or ever ought to do in sueli a case,
oi ln any ease. You will have pronounced what
the law is, leaving the Executive to obey it. or
not, as be sees fit. You have no power to
coerce him, and if lie should not yield obe
dience to tlie judgment which you pronounce,
I,lien the scheme of this division of powers
would have been-disappointed. There would
be the_ willing opposition of two department*
defeating the negative voice of the third, and
the Constitution would have perished by the
hands that were elected to support it.
Tlie further argument of the question (Mr.
Walker being the next speaker) Was postponed
till the next regular motion day l-'i iday next.
OONHIG NHICH Pir.lt CENTRAL RAILROAD,
April SO, 1807.—<> W Kvnns Ac Hon, ,5 it ,v ,1 \y
Walker, 1> II Jacques, C A Kolibc, A Stevens, K R
" * Co, [HI, li & 8, 0 K & Urn, G It It, O II Lesser,
° Bymm«, J K Roll, J Butter, T .V K, .1 I. flow, Gray
* T, Gray, M At Co, A I‘onllain, O A: 1), |J A: Co, C C,
Rainey A: T.
CONSIGN RICH PKIt SOUTH CAROLINA
RAILROAD, April SO, 1867.—<b raty AA, Klt H,
Baker Ac 8, ,J J llredeiil.urg, K A It, M Hyaiiis A Co,
Tims (I Penn, <J II Warner, H It, J Nelson A Hon M
Gote, W Hill, J til! A- Bio, (J T Jackson Ac„, Hie,.-
bourn) A Co, 8 Perry, Perrin «V Co, G L lVmi, J It
Brooks, care I) L A Jains, (A), T It Rhodes, Backer
A Co, Oetjen A 13, J Ilalin, [Bj Order, V. McCord, ,V
IJanfortli, C Hammond, J B Haiti van, II J Ur, on wood.
8P EC ’IA 1 1 N<>T l< ’ EB.
K#~ GEORGIA STATE LOTTERY—FOR THE
BENEFITOF MASONIC ORPHANS' HOME—My Office
has been removed to No. -2.15 Broad Street, AUGUSTA.
GA. All orders by mail promptly attended to.
a|l3 ° 6 M. G. MoKINNE, Agent.
SkVUITY TAXES FOR 1867,-Notico is hereby given
that the City Tax Digest has been placed in my hands for
collection, and that all persons are required to pay their
taxes for 1?67 within sixty days after this date. A prompt
attention to this matter will save parties taxed addi
tional expense.
I. I*. GARVIN,
_ap2l-10 Collector and Treasurer.
Batchelor's Hair Oye !
Tills splendid Uair Dye is tho best in the world. The
July true and perfect Dri-Harmless, Reliable, In
stantaneous. No disuppointincftt. No ridiculous tints.
Natural Black or Brown. Remedies the ill effects es Bad
Dyes. Invigorates tlie hair, leaving it soft and beauti
lul. The treonine is signed William A. Batoiiklor All
others are mare imitations, and should be avoided. Sold
by all Druggists and Perfumers. Factory, si Barclay
street, New York.
deetbf OF A COUNTERFEIT.
•viT EMIGRATION TO VENKZEULA.-Notice is
given to those desirous of EMIGRATING and securing
the LIBERAL GRANT OF LAND offered by the Vene
raela Company, that a Vessel will positively sail from
CHARLESTON, MAY 18th, for Orinoco and Caroui
Rivers.
For Passage, or further information, apply to
A. F. KUDLEII, A gout,
Augusta, Oa.
Kir MAKE YOUR STATE TAX RETURNS.—AII
poisons concerned will take notice that for the purpose
of receiving said returns I shall attend at the Core of
Mr. A. Stevens. 299 Broad street, from tlie first day of
April until the !5tU of June. Saturdays excepted, and ou
Saturdays of the months of May a sal June, at the Court
Grounds of the County Districts. All males, both white
and colored, between the ages of tiventy-one and sixty,
are required to return and pay a State Tax of one dollar,
and such other Tax as may bo imposed by the County.
For failure to return by tno tsth of June, the penalty is
double tax. and will be enforced.
Office hours from 10, a. in., to 1, p. m.
MATTHEW SHERON.
Receiver Tax Returns Richmond County.
nih3i-tf
HW CHANGE OF SCHEDULE ON THE GEORGIA
RAILROAD.—To improve connections at Atlanta and
ottier points. Ou and alter WEDNESDAY, March 13th,
1867, tho Passenger Trains will run as follows:
DAY PASSENGER TRAIN
Leave Augusta at 6 30 a m.
Leave Atlanta at 8 30 a m.
Arrive at Augiudaat.,. 6 00 p m.
Arrive at Atlanta at 5 30 p m.
NIGHT PASSENGER TRAIN
Leave Augusta at 9 3* p m.
Leave Atlanta at 6 30 p m.
Arrive at Augusta at .7.. 6 C, an.
Arrive at Atlanta at 10" an.
Passengera for Mayfield, Washington aud A t hen-. (i a-,
must take Day Passenger Train from Augusta and At
lanta.
Passengers for Mobile and New Orleans, must leave
Augusta on Night Passenger Train, at 9 30, p. m., to
make close connections.
Passengers for West Point, Montgomery, Nashville,'
Uoriutli, Grand Junction, Memphis, Louisville and St.
bonis, can take either Train from Augusta and make
dose connections.
THROUGH TICKETS aud Baggage Checked Through
to the above places. . .
SLEEPING CARS on all Night Passenger Trains.
E. W. COLE,
General Superintendent.
Aogdsta. GA., March 13, 1867. mhl3-tf