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

act. AS yet not one of us is SO wise as to
see into that future and know what is to
happen, or whether the nischiefs that these
gentlemen see in the distance are to take
bodily shape. AS yet the case is like the
dream OF the poet. 1t has nothing of local
and yet 1t is said to be case for a court OF
equity. The court does not sit for the pur-
pose Of deciding questions uncertain, ques-
hons contlngent, questions that may be
carried out III one Or another way. Courts
sit for things practical, for rights ascer-
tanned, for injuries committed to things in
shape, in substance, tangible 1t must be a
thing N ?'e7tna 2adtUT0. and there must be a
practical threat to mi re that thing, before
the preventive power of a court of equity
can be invoked. Now, say to my learned
friends that their whole case is uncertain,
contingent. They say there is mischief in
the future, but whether it will ever come
no mortal knows or can see. This point
was illustrated by references to cases of
contingent interests and possibilities, which
have been held not to be cognizable by d
court of equity for preventive relief
Ii the Court please, [ have perhaps spent
time enough on these points, and [ now
come to the last point, which is, that we
have, after all, nothing but a political case
Now, suppose the mischiefs which they
say will be cOnsummatel are consummated
suppose that what is proposed to be done
is done, and all that il; future and contin-
gent becomes actual and past, and a con-
stitutlon is framed under these laws and is
accepted and ratified by Congress as the
constitution of Georgia, and then an appeal
Is made to your Honors not to prevent, but
to restore, to keep, to preserve the right OF
the contesting State organization as the
State government of Georgia-what sort of
a question would your Honors then en-
counter Just the same that you encoun-
tered in the Dorr case, Luther as. Borden,
precisely A new constitution formed by
the people of a State under the authority
of these acts, and an older State constitu-
ton formed by the people under due au-
thority, as they allege-these two sovereign
ties at once enter into a contest for SUI
premacy. Is that a sort of controversy
which your Honors can decide as court of
equity In the first place, they will not
stop to come to Il court of equity; they will
settle that by force. The old State gov
eminent, if it is a legal one, has a right to
reslstany usurped government that pretends
to be the State. If that usurped government
brings against it a force that it cannot with
stand, what then is its remedy? Tocome to-
court Of equity to ask them to enjoin the ad-
vance of the hostile force to say to the
commanding general, You shall stop your
march, we hold that you are not the right
full government this other is. The Cen
stitution contemplates exactly that state of
things. If the existing State government
of Georgia, which these gentlemen repre-
sent, is the legal State, it will remain the
legal State Notwithstanding these laws. If,
as they say, these laws are unconstitutional
and void, no authority given under them
can ever prejudice the State. Is there no
remedy? II the new constitution is sup
ported by an armed force greater than the
present government can bring to bear
against it, what is the remedy 4? A court :
No; but Congress and the President, the
political power They are then precisely
in the situation pointed out by the Consti-
tutiOn-a State in instruction q lawful
State warred upon by an unlawful, unau-
thorized body claiming to be State, using
force against force, that the rightfui State
cannot overcome. Then comes a case fo1
political interference. Then Congress and
the President must decide which of these
two is the rightful State and when they
decide it, it is decided for your Honors and
for ALL for that is the only tribunal that can
decide it.
Citations we're made from the cases OF
New York, vs.. Connecticut Il Dallas, ~
and Rhode Island VS.. Massachusetts,, az
Peters, 657,) to show that the Supreme
Court entertained jurisdiction of those Ca
ses, involving questions of boundary, be-
cause right to land was III dispute. The
fact that political consequences were lnyol-
we'd was mere incident. The case OF the
| Cherokee Nation vs.. Georgia i Peters, 14)
was an attempt by the Cherokees as a sep
arate nation to prevent the execution OF
certain laws of Georgia violating their
,,C rl,tc hUt rao hIlf 10 n
clined to interfere in this way. In the case
of Osborne VS.. The Bank of the United
States, an Injunction had been sustained to
prevent the collection OF State tax on the
shares of the bank; but that WAS a private
corporation, and the remedy applied was
the only one to reach the case; 50 that there
was no parallel between that instance and
the present one If the Wheeling Bridge
case was cited, it must be remembered that
the State of Pennsylvania was granted re
lief, not because of her political character,
but because she was the owner Of canals
and railroads terminating at Pittsburg,
costing her treasury many millions, which
it was held would be irreparably I'M ured by
the bridge. Have the gentlemen any such
case? Not at all. From beginning to end
I can see no ground upon which anything
like judicial cognizance can be founded by
any power of this court. The great, stub
born question which now unhappily agitates
the country from one end to the other can
not be settled by the Judgment of this
court. It will be finally settled, and I hope
rightly; but when come to argue it, Unjust
go to another forum, to another tribunal
than this, forget for the time that am a
lawyer, and argue it altogether as citizen.
ARGUMENT OF C1IAs. o'CoNoK, Esq.
Mr. OConor. May it please the Court,
the learned Attorney General has not fail
ed to suggest every objection, Of the most
minor description, which could be urged
against the bill filed in behalf of the State
of Georgia. He has observed, that consid-
ering the grave lawyers engaged in the case,
it is rather singular that the bill does not
contain even a prayer that the defendants
answer The bill commences with the state
ment that it is filed by the State of Georgia
against these three defendants, and com
plains of them, and concludes with the
common, ordinary prayer for a subpoena,
as we'll as preliminary writ of injunction
directed to these parties, commanding them
to be and appear, and to stand to obey,
abide, and perform such order and decree