Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-10

of Congress after IL became law, thaC De
ing judicial question. He has no discre-
ton except to execute the act, and that i'm
portant fact goes to the very gist of the
matter When an application is made for
a 7,aoudaDaus to compel the performance OF
an act, or an Injunction to restrain the ex-
ecution of an illegal act, it depends upon
whether the executive officers have dis
erection in either case to judge of the law,
and a right to execute it or not at their
pleasure. If they have no discretion, and
the law positively commands the execution
of particular act, the remedy is by man
danaus. to act Automatically; if the law forb1ds
peremptorily the execution of an act, then,
where it can be made judicial question,
the appeal is to the judicial tribunals, and
especially where the question is a constitu
tional one. In this case the President has
no discretion except to execute the law
the subordinate officers who are obeyine
his commands have no discretion except tc
carry his orders into effect; and there is nc
distinction in such case between an exc
cutive and ministerial duty. m1nlste
rial is merely branch of the executive
duty, the only difference being that min
isterial duty is where the officer has no dis
erection but to perform the act. For exam
pie: when an account is presented to one OF
the accounting officers OF the Treasury, OF
comes up by appeal to the head of the De
partment, the duty of deciding upon that
account is not ministerial, because Judg-
ment and discretion are to be exercised,
and therefore court IN such a case Will
not interfere either by mdntianeaS or injunc-
ton. But when the officer has no discre-
tion as in the case of Marhury VS.. Madi-
son. ! Cranch; in the case of Kendall, 10Th
Peters, and others that have been men
toned, where the law is positive and per
| emptOry, and an officer is told 10 do or not
| to do particular act, it is a settled princl-
pie in this country, and in that from which
we derive our jurisprudence, that the courts
will issue Il n2U7aCldn2uS to compel the per-
Torrance of the act required by law, or an
| Injunction to restrain the act fobidden by
law, because in such cases the law has left
no discretion, but it is the duty Of the Off
Ger to obey 1t.
In the present instance the President
and those acting in obedience to his or
ders have no discretion bnt to execute this
/ law but if the law be unconstitutional is
there no power to vindicate the Constitu-
ton Must it be disobeyed and treated
as a dead letter? No. The Constitution
provides for that exact contingency by de-
caring that the Federal tribunals shall have
cognizance in all cases arising under the
Constitution, laws, and the treaties of the
United States, and by making the Supreme
Court the final arbiter to construe the Con-
stitution and give it uniform effect through
out the Union, and permanent effect until
it's decree is reversed by the same tribunal.
When the President and his subordinates
proceed to execute law which is deemed
to be unconstitutional, the Constitution
gives to citizens and to the States, in the
cases provided for by the Constitution, the
| ,io.ot +o Into hot 4Yih &c
made the arbiter, to obtain q decision on
that point. Surely there could be no dis
pute that this court WAS that arbiter, and
that on proper parties presenting themselves
| it was bound to decide whether or not q
particular law was constitutional, and to
furnish all the remedial powers prescribed
in the Constitution.
| This was said to be political question,
and to involve political results. Livery act
of Congress in one sense involves political
questions, because every act of Congress
| operates upon thirty-six millions of people
as q law throughout the Union; but has the
court ever hesitated where the question
was presented, to compare an act of Con-
gress with the Constitution and decide be-
tween them ? Look at the cases where the
court had pronouncedits Judgment on con-
stitutional questions. If any question was
more political than another it was one aris-
ing under a treaty, because it involved our
relations with foreign powers but the
court had entertained Jurisdiction in many
| cases under treaties. SO as to the embar-
go, q question which convulsed the Union,
and upon which portion of the country
was almost ready to go into insurrection.-
So OF the power to pass bankrupt laws. So
of the great commercial question decided in
| Gibbons vs. Ogden. So in the case of the
| United States Bank. That was political
question upon which two or three Presiden-
tial elections turned but the court in
quired into and decided upon the question
of its constitutionality. And here he wish
ell to notice a suggestion of the Attorney
General who, in commenting on the case
! of Osborne VS.. The Bank of the United
States, had spoken or it as a private cor
poratiOn. The court decided that it was a
| public corporation, and that it was only
constitutional as a fiscal agent of the Gov
eminent. The court affirmed the power of
the Federal Government to establish such
| a fiscal agency, and the right to preserve it
from hostile State legislation by the rene
dial writ Of injunction. So with the ques-
ton Of tariff and here the Attorney Gen
eral stood on the same platform with the
nullitiers Of 1929. At that time the du-
ties were not paid in cash, but were secured
y
General jackson, and the entire Union
party called upon South Carolina, who de-
clared the tariff-law to be unconstitutional,
to bring that question before the Supreme
Court. Her answer was the identical posi-
ton now assumed, that the power to pass
tariff was a political question into which
the judicial tribunals could not inquire; and
that little party made frantic efforts to Sc
cure the repeal of the twenty-ffth section
of the Judiciary act of 1889, which gave the
right to bring before this court the final de-
cisions of the highest court of State in
cases involving the construction of the laws,
treaties, and EConstitution of the United
States So in the Milligan case, decided
at the present term. The question was a
political one, growing out of the existence
of the rebellion and yet every member of
the court exercised Jurisdiction. The test
oath cases also presented political ques-
ton applicable to the rebellion and yet
both the majority and minority. opinions
admitted the jurisdiction of the court.
The dissenting opinion in the Milligan
case admitted that martial law could not be
proclaimed in time of peace, and held that
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