The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-04-10
THE OBSERVATION-DISCLOSURES.
THE MISSISSIPPI pETITIoN-ARGUhENT IN THE CASE.

The following extracts contain the points made
in the argument in support Of the petition OF the
State of Mississippi enjoining the execution OF
the Military Reconstruction Bill, which was Offer
ed in the Supreme Court of the United States on
Friday last. The great length Of this argument
precludes our publishing it in full II will be, de-
Gverod before the Court on Friday next After
stating the terms of the act, the argument says:
The frs question is, do the acts of Congress be-
fore referred to violate the Federal Constitution
Such was the opinion Of the President of the Unit
ed States. as expressed in his veto messages, ana
we shall but state the supposed points OF conflict
without extended Ihe s9ts n eT
nance Of 1857, made under tho compact With vir-
ginia, both of which compncts were extended to
Mississippi, and made 'unalterable" and ''hna4
and conclusive" by Congress and 80 accepted Dy
stroy the State Constitution Of Mississippi OF
1917, accepted by Congress, as well as the amend-
ed State Constitution Of 1865, established by the
people,
If there was any fatal irregularity in the State
constitution of 1865, which is denied, that would
not territorialize the stats or abolish the State
constitution Of 1917. These ACTS deprive the State
Of that representation in the two Houses OF Con-
gress constantly and forever secured by the Con-
stitution. They substitute military rule for that
Of the civil Inv; they repeal the right OF hg6eas ca
corpus in time Of peace; they deprive men OF llfe
liberty and property without due process Of law;
they subject chem to arrest without warrant found
ed on affidavit; they deprive them Of the safeguard
of grand and petit jury. II all this may be right
fully DONE then these acts may be constitutional.
Second-The next question is, are there proper
parties to this suit as complainant and defendants?
The Constitution declares that sthe judicial power
shall extend to all cases in law and equity arising
under this Constitution, the laws Of the United
States, and treaties made or which shall be made
under their authority" And it also declares that
in all cases affecting ambassadors, other public
ministers and those in which State ls o party,
the Supreme Court shall have original jurisdic-
tion." This is q case in equity, as will be SHOWN
hereafter. It arises under the Constitution, and
State is party complainant. That State may sue u
by original bill in the Supreme Court OF the United
States has been settled by this Court.
It is important however, to consider whether
the President of the United States can be made q
party defendant to this bill, inasmuch as there is
no precedent directly to the point J Yet it s be-
lieved the question has been virtually settled by
very high authority. It is important, in this con-
nection to mark the. Distinction between what are
called political powers and such as are ministerial,
In the exercise of discretionary OF political powers
courts will not undertake to control the action OF
officers but not so with regard to ministerial
duties, in the exercise Of which no one is above
the law, however exalted his position. Fortunate
lyiwe have neither King, nor an Emperor, nor q
Parliament who are omnipotent or above the Con-
stitution.
Our Constitution declares that ''the judicial
power shall extend to all cases in law and equity
arising under this Constitution" Co. And thus
the judiciary are made the guardians and pro-
tectors Of the Constitution.
The President is but the creature Of tho Consti-
tution-ona of the agencies created ny it to carry
indeed if he should be permitted to exert bis
agency in violating that instrument and then
claim exemption from the process Of the Court
whose duty il 8 to guard 1t against abuses, be-
cause he is the chief executive officer Of the Gov
ernment and especially when he is exerting q
in executing an act OF Congress. He has no dis
cretion in the matter.
The Constitution makes no distinction as to
parties. The case is the criterion no matter VINO
be exempt from the process Of the law, he is
above the law. On this point it would, perhaps,
be sufficient TO refer to tho very elaborate and able
decision of Chief Justice Marshall, delivered on
the trial OF Aaron Burr. An application was made
for subpoena ouceS tecuna, to be directed to the
ton was resisted on the ground that the President
was not amenabc to The process Of the court, and
could not bc drawn from the discharge Of his
duties at the seat OF Government and made to at.
tend the court sitting at Richmond. The Chie
Ju tice drew the distinction between the President
and the King of England, and held that all officer:
in this country were subordinate to the law and
must obey its mandate, and therefore. sustained
the application. -.
The subpoena duccs tecu,e was ONLY q command
to the President to do particular thing; the in
junction is but command to him not to do O par.
ticular thing under void authority. The princi'
pie is the same in the two cases, as well as the
means of cocrcing obedience, and the reasoning oi
Chief Justice Marshall completely reaches and set
ties tho question now before this Court. The Con.
t1,ot oil ofEn In i'm.
peached; but this docs not cxonerate them from
personal liability for acts done under color of OF
ice-thc President as well as other officers. The
whole question lies within narrow compass. The
Constitution is supreme, all officers arc subordl
nate to the supreme law, and consequently subor.
dnatc to the command of that department. whose
duty it is to enforce subordnaton by declaring the
meaning, the extent, and the limitations OF the
Constitution.
II the President be exempt, why not all his
Cabinet oficers2 They all constitute but parts o1
the Executive Department of the Government
Yet in the case OF NIabry Us Madison, Cranch, il
was decided that the acts Of the Secretary of State
were the acts OF the President and that the Secre
tary might be subjected to the process OF naandl'
mus. Why would it not just as we'll lie against the
that the subordinate is liable and may be sued for
acts which are the acts OF his principal, and YET
that the principal is not Liable and cannot be sub
iected TO the process of law. Even more recently
this Court has decided that officers OF the Execu
tive Department are liable to the process Of the
Court. (Sce Kendall Us. Stockston, II Peters, 524
United States Us. Guthrie, II Howard, 254.) Tho
case OF Ellis U.s. Earl Gray, simons, 214, is lead
ing case in England, and has been approved in
this Court. In that case it was decided that the
Lords of the Treasury, constituting the prominent
department Of the Executive Government, might
be enjoined by the Judicial Department. Iu that
country the King is supposed to be above the law
and it is tho fountain Of justice, yet his immediate
subordinate departments are not above it. Ii this
country the President is not above the law; it Ii
above him, and hence he must be subject to its
restraints.