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

| suppose them to exist. The lack OF preCe
dents il only an evidence OF the cnormity
of the act which is now brought under the
observation Of the court.
Again NY learned friend finally comes
to what Is bis grand point in this case, thai
the subject matter of the bill, the case
stated, and the relief sought are pohtlca
in their nature, and he states that the case
is nearly like DORIS case, Luther vs. Bor
den, reported in It'll Howard. In that case
the precise thing was done by DOrr and his
i adherents which these acts in the present
instance seek to perform. There was {
State government i'll the hands of q portion
of the people Of that State constituting its
whole electoral body. Dom was Of opinion
and his adherents backed him in it, that {
greater number Of electors ought to be adj
mittcd, and he, therefore, undertook by
spontaneous meetings to erect an lndepen
dent State government. He failed III sc
doing. This court decided that it was DC
government, bat that the original charter
ed government which there existed was the
legitimate and lawful government; and con
sequently Dorr failed He failed, I trust
not through any other cause than the in
trinsic injustice, improperly, and illegail
ty of his course. The very same reasons
would lead to the overthrow of these acts
of Congress.
But the great bugbear with which it is
supposed this court can be driven from lis
propriety is, that this is political ques-
ton, and, il I understand the tenor Of the
argument, it is, that is political question
in the vulgar sense Of the word ''political;
that it touches party politics. | humbly
apprehend that that is no objection to the
court entertaining jurisdiction What 50
common as for q court Of justice to
be obliged to pass in that sense
upon a purely political question ?
He admitted that the court had no political
ower-indeed, no physical power--antt
was compelled to rely Oh the executive au-
thority for the faithful execution Of its
| judgments. II the sublect-matter Of Il suit
be one which the process of the court IS
adequate to reach, and If the right claimed
be legal right, or ii the wrong complained
OF be Of u character susceptible OF being
relieved against, there is no objection arts
| ing from the delicacy OF difficulty Of the
questions that may be presented, or the
| passions which tie decision Of those ques-
| lions may chance to excite. The writ of
habeas corpus was an instance. The oper-
alton of that writ was to arraign executive
power and to determine the validity of eH-
ecutive acts Prize cases were another IL
| luStratiOn. So were cases between States
as to boundary. The case OF Kendall was
cited, and the power to issue an injunction
as well as q mqnt!amuS commented on by
a reference to English cases and to Drewry
on Iniunctions The doctrine Was assert
ed, that whilst the Judiciary cannot touch
Congress, cannot obliterate its acts, how
ever unconstitutional while it cannot
touch the person of the Chief Magistrate
they can protect the rights of any indiyid
ual showing in other respects right tc
+lo;, ;,,Fo aho1
act OF Congress which is not q law, which
is void, and against any unlawful action at
tempted under it.
We have shown by tho cases cited tina
the highest officers in England are enioin
, cd we have shown by the cases cited there
and here that by Injunction and n2GJtdC0nn
the highest subordinate officers Of the OK
cCutive department are enjoined and com
manded. There is an impcrious necessity
we admit, not applicable TO any other de
partment of the Government, and arising
,, from the unity OF the Executive, that thu
Executive person, SO long as he holds tina
Office, should be exempt flom the coerciy'
, process of the court ; but that IS no reason
why the court should not pronounce it
judgments and use its process to cocrc'
, subordinate officers, admonishing them 0
! what is the law. Iadmit that such an al
monition, when pronounced by the cour
and delivered by its prcCept to Il subOrdi
nat0 officer of the Executive cannot b.
enforced if the President chooses 10 btaut
IN the way and prevent its execution.
say that it IS heresy of the most palpabl
, description even to talk about the cour
having OF not having the power to execUt
its DEGREES. No court of Justice III 3 fre
country ever had the power to execute it
! DEGREES. Every court must look to tho cz
CcutivC department, not to give 1t means t.
carry its DEGREES into execution, bu
through his subordinates, and by the ply
steal force ut his command, to Cxccut
them. The court may be said to be III
more than, as it were, the BRAIN the judg
ment, the intellectual power Of the nation
1t examines u question; it decides tn
: question ; it states what ought to be don,
. in q given case by reason of that decision
and for the rest, for execution, it leaves
to the executive department. The book
from which the principles of our jurispru
dence and political science are drawn
abound with invectives against such an ide;
as court, a judicial tribunal, having powe
: to execute its DEGREES. We are told tina
for the same body or the same individual
| to declare what is the the law and to exc
cute the law is the very definition of II ty
rant. 1t is exactly what we witness in bar
barous and semi-barbarous chimes. Th
; sovereign is the law-maker he is the Law
eXpounder, and with barbarOus passions h
t executes the law, often with his own hands
Nothing Is more unfounded and irrationa
L than to say owe will not exercise iurisdic
3 ton, because the executive power of tn
Government, if it sees fit, instead of doinI
its duty and enforcing our decree, may Sc
our decree at defiance" Nothing is NOR
subversive of sound principle. Such
e proposition never affords the slightest rea
0 son for withholding the exercise of juris
: diction. 1t has often been said of court
of justice that, generally speaking, thei
a DEGREES execute themselves. Such, indeed
e was the case in all these questions of boun
Diary. The court had but to declare tn
t line, and all the political consequences fol
!; lowed. So, in this case your Honors' de
: cree will execute itself. Award the writ @
e injunction, and what may be called an ez
e cutive oficer-thcugh, to be sure appoint
S ed by yonrselves-your clerk issues it as
Il sort of announcement of what your iude
J. ment is, and it becomes the duty of tn
e Executive to carry it into execution. If h
: fails in his duty and refuses to execute il
s your Office is performed you have redeem
g ed all your obligations to the Constitution