Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-03

Il
obey its mandate. That is true; but there
is a higher Injunction than any this court
can issue which does restrain the court Tor
the trial Of impeachments from condemn
ling the President in such case, The Judg-
fment of this court that the performance OF
these acts in relation to holding elections
for State officers through military agency
is not warranted by the Constitution and
an infraction of it, and forbidding General
Pope to hold such an election, would be
Judgment an rem, judgment upon the We
nv point, Judgment as distinctly pronoun-
ced between the ma ,esty of the American
neon1e and the American Constitution
against Andrew Johnson as the forms OF
law and proper decorum in administration
and necessity in fact permit. 1t would DE
essentially Judgment in rem, ana II An
drew johnson was lmpeached before the
court of impeachments for not having car
RED these acts into execution, no plea would
be necessary for him except lsSu-
ed an order to my officer to obey these acts;
that officer was 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 Court enlolned that
officer not to execute these acts, and there
was no wav in which could execute them
except by violence upon that coordinate
tribunal, the Supreme Court, because if
nv officer went on and refused to obey
their directions, they would attach him; if
I forbade the marshal my subordinate, to
execute that attachment, they would attach
him; and thus an unworthy, contemplate
exhibition oe conflict (rather OF evasion
than conflict on my part would be exhibit
ted that tribunal, which is the judge in
the case, entrusted with the right to decide
I it, finally decided these acts to be unconsti-
| tutional, and could do no more than yield
my obedience to the Constitution, as inter-
preted by its chosen Interpreter, and no
! further execute these acts, which Congress
had no authority to impose upon me-" An
drew Jackson might have had the n7nndGn1a;
| disobeyed in the Kendall case by transfer
ring his Postmaster General to some other
office; but it would have been a violation of
his duty SO Andrew johnson might in
this case ncutralize an injunction by re-
moving General Pope and substituting an
! other military commander; but this would
be violation OF his duty.
4 letter of Mr.. Madison, written i'll 1884,
| a Madisons Works, PIP, $40, $50, was quo
ted to show that the Supreme Court was
! the final arbiter of constitutional Qucs-
tion5.
It may be entirely clear that if this court
should issue its i'll JUNCTION to restrain the
subordinate officers of the President I'M
less ne overrode its orders lie might be
condemned by the court for the trial Of i'm
peachments. It is generally true, hOwev-
er. that the body which would be obliged
to initiate, and finally to determine, that
prosecution has, IL virtue of its Legislative
power, ample means to 90 great many
worse things than that. BY repeating old
laws and by enacting new ones. We do not
deny that it might completely paraiyze the
functions of this court, and essentially de-
privc it of any capacity to administer JUS
tice. But it is no argument, when we come
into this court and ask it to exercise It's
powers within its legitimate sphere under
) the Constitution, to say that violent, law
less, Revolutionary measures, involving 4
violation on the part of the other depart
ments, might by possibility be induced by
: its proceedings and therefore that 1t ahout'I
! refrain from performing its duty. Quite
} the contrary it IS only for the court to see
that it has a duty to perform, and perform
it. And this brings me to question which
| has not yet been presented t. the consider
5 alton Of your HonOrs whether these acts
are of a desert ptIOu maulfestly within the
prohibitions Of tic Constitution.
If the State of Georgia IS not III the
Union, there, Of course, IS all end 81 this
case she IS not here as u competent sutton,
and the case cannot he entertained. But
VIC have laid before the court, III docu-
| ment presented, such multitude OF proofs
, Of the recognition Of Georgia as State al
the Union by all the departments of tie
: Govcrnment-nay, of her recognition
, under these very acts now sought TO be
s avoided by the interpo8ition of the court
that | apPrehend It IS q question that can,
. not for All Instant EC entertained. The
t court must assume-the learned counsel has
not attempted to deny that Georgia is Il
; State Of the Union, and, therefore holds
} the position which she claims III this case
= as a competent sutton.
Then, as to the constitntionality OF these
2 acts, it will be seen that, turning j IS back
, completely upon the fundamental laws OF
Georgia, Congress by its absolute will I'M
dertakes to create d new class Of electors
5 all male citizens twenty-onc years of age
and upwards, Of whatever race, color, OF
! previous condition, who have been resident
in the State for twelve months If Georgia
is not in the Union, of course the Constitll-
ton does not protect her but if she is, she
is in it as etfectually as New York, Pennsyl-
yanla, Ohio, or even proud Massachusetts
and is 1T IN the power OF Congress, by its
own arbitrary dictW7n, to enact that there shall
: be no further elections in any of those States
for State officers, that the government in
! them shall be regarded us merely provis-
lOnaI and that its army officers, backed by
its armies, shall go into them, and shall
: hold an election, by means of which new
, constitution and Il new State government
: may be established, and define sccording
t to its will and pleasure the constituent
3 body ?
I 1t may be said that the constituent body
here is very literally defned-that it is not
subject to the objection of unfairness OF
partially. Nay, it may be considered that
it is very impartial, SO far as the inclusion
, of persons is concerned. It would have
been still more impartial if it had said that
all persons may vote, whether residents OIL
not. It would have been more impartial
: if it had admitted felons convict. It you'd
l have been more impartial and more liberal
: if it had admitted all the ladies. 1t would
: have been more impartial and liberal if ii
d had admitted all the children down to the
: age of twelve or fourteen, OF whatever age
would be sufficient to enable child tc
e walk to the polls and cast his vote
. But that is not the question We are here
: dealing with a question of power. If Con
, hos IN, I,rororiba tho ono