Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-04-20


rAFLIRE.
The unfortunate attempt Of MsssFs.
suhRxEY and RoBEKr J. WALKER, to
persuade the Supreme Court Of the Uni
states to enjoin the execution of the
reconstruction Act and Supplement by
tbe President, has failed, as We some
.savs predicted il would do. The
was unanimous in the opinion, it
soan,z that the bill Of the State Of Mis-
,sid not present . case that gave
II any jurisdiction. and that it could not
in any case eoutrol the Political action
Of the President. The result is rather
damaging TO the legal reputation Of
Judge SHARKEY, whose application for
an Injunction never had the ghost OF q
chance, and to whose argument the re-
ply of the Attorney General was per-
feetly conclusive, though wholly unne-
eessary. It would have been enough to
say that the Court could not undertake
to enjoin the President, unless il had the
power to enforce obedience to its man
date, by attachment and Imprisonment,
which would be to destroy the Govern
ment. That would cease TO be a Gov
ernmeRt, in any true sense Of the word,
in which the Supreme Court could i'm
prison for contempt the President, his
Cabinet, and the Commanding General
Of the Army.
The bill Of the State of Georgia en-
deavors to avoid the difficulty, by not
making the President a party. 1t is ex-
hibited against the Secretary at War,
General GRANT and General ORD. As
the Court stated in the other case, leave
to file a bill is generally given as = mat
ter OF course; but upon the suggestion
of the Attorney General that there was
seandalous matter in a particular bill, or
that it made a case not fit to be consid-
cred by the Court, it would take time to
look into the bill, before permitting it to
be fled.
The Attorney General said that the
objection which he had made to the bill
of Mississippi did not apply to that Of
Georgia, and therefore he did not oppose
its being filed. 1t was filed, therefore, as
Of course, and subpoena ordered return
able to the next December term. The
motion for a preliminary injunction
could therefore be at once presented, the
case being before the Court for that pur-
pose. But, upon the filing of the bill, the
Attorney General moved to dismiss 1t
for want Of jurisdiction, and this brings
I'd the merits of the matter for argu-
ment, on the 18th Of the present month
We have not the least doubt that the
Court will unanimously hold that it has
no Jurisdiction.
In his argument In the Mississippi case,
the Attorney-G General declared that if
the court should issue the injunction
prayed for, it would be the duty of the
President not to obey it, and that he
would refuse to obey ~ Fer this deela-
ration, this law-oficer of the Govern
ment has been savagely denounced by a
leading Conservative journal, and, As
we think, very unjustly. II the Su-
preme Court had taken jurisdiction Of
the case, il would have done 50 unlaw-
fully, and the writ issued by it would
have been an act Of %usurpation, which
it would have been the sworn duty Of the
President to resist. II, as We hold he
ought, after vetoing the bills of recon
struetion as unconstitutional, to have re-
fused to execute them, because to do so
was to violate his cath to support, pro-
tect and defend the CONSTITUTIONAL he
ought to have refused to establish mill
tary despotisms over the people Of ten
States in time of peace, when, in his
opinion, those States are in the Union,
and their people protected by the Con-
stitution,-sO the same oath would have
bound him to refuse to obey a mandate
Of the Supreme Court, plainly issued in
violation of the same Constitution.
To say that it would be his duty,
although he were not bound, or were at
liberty, to obey the writ, yetto accept the
decision of the Court as conclusive on
the question of the uneonstitutionality
OF the reconstruction acts, is to beg the
whole question. We hold, indeed, that
when the Supreme Court, IN a case
whereof 1t has Jurisdiction, decides a
constitutional question Iegitimately pre-
and the decision whereof is ne
cessary to the determination Of the
Of the parties to the suit, all De-
partments of the Government are bound
to accept the decision and judgment as
conclusive, and to be governed by it in
their official action, whatever their pri-
vate opinion of it may be. But the first
and Indispensable requisite to the con-
c~lusiveness Of snch a decision, is, that
the Court shall haze Jurisdiction o the
case A.; and the next, that the decision of
the question shall be necessary, to de-
termine the rights of the parties. II the
condition does not exist, the matter
is corGna non judjce, decided by a no.
Court, and the decision is a simple
that binds the conscience of no
one. If the second does not exist, the
decision is o5tter djetu1a, the expression
Of the mere private opinions Of the
Judges, and equally without bindings
force. In neither case is there any judg-
me5t of q Court.
The Court having no Jurisdiction in the
Mississippi case, the President would not
be bound TO accept as conclusive on him,
any opinion that it might give, any more
than to obey the mandate it might issue.
We might add, that even if he ought to
accept it as conclusive, aud convinced by
or respecting it, refuse to execute the
declared unconstitutional, the OBJ
would be not one whit stronger
than that already resting on him, SO to
because of his own declared con-
viction of the unconstitutisnality Of both
acts, which conviction he hsd no right
10 yield, and never did in fact yield, 70
he contrary opinion Of Congress Tand
which he ought TO have been g'v-
.rned, if it had even cost him his head to
.efuse to execute these laws, which are
utilities, because in direct, inten-
ional, wicked violation Of the COnstitu-
ion. No man dares argue that they are
constitutional; and for the President to
them, convinced as he is, Of their
nvalidity, is q crime, and one OF uRpar-
.lleled magnitude, because it eonsigns
Millions Of people to all the ignominies
md expressions Of military despotism.
Undoubtedly it would have been the
Presidents duty to have resisted a grave
ncroachment by the Judicial Depart
aent on the Executive Department Of
be Government. He would not have
cen at liberty to submit to it, for ne
odds his powers IN trust, TO be trans
nitted unimpaired to his successors.
tut the declaration made by the Attot-
Il