Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-04-09
WasHINGFoN, Friday April 5.

mt4itafy i isE9ecOnstruGIion Bill
Judge Sharkey submits a Btll Of
G[C010pta1Nkts---zz--.e--,. ?
wasHNGroN Friday April 5.
Judge 'Sharkey and Hon. Robert J
the United States this morning, on behalf
of the State of Mississippi.
The former rose to submit bill of com.
plant. The application was, filed and will
be @gaed next Erida4{1 10 n7uJ3h
The Argument In Support of the
Petition.
The following is the argument that will
be made in support of the petition in the
Supreme Court on Friday next: ~ II
This bill is filed to epjoin the execution
provide for the more efficient government
of the hebel States" and also an act sup
Elemental thereto. Although the questions
arising in the case are of great magnitude,
exoeading IN importance any ever present
ed to this Court, yet they are few in num-
Der. This application Is in behalf of one of
the States of the sQniop to- restrain the
President Of the United States, or any of
his officers acting colore o1icii, from destroy
ing a State or exercising power over q
State, or its people, forbidden by the Fed
eral Constitution. The ConstitutioI.A5f the
supreme law" and all laws of Congress, or
ofa State repu9hABt thereto, when brought
under judicial cOgnizance, must be declared
void. Such is the settled doctrine of this
Court aud of all our judicial tribunals,
State and National.
The first Question Is, do the acts of Con-
gress before referred TO violate, the Federal
Constitution?- Such was the opinion of the
President Of the United States, as express
ed In his veto messages, and we, shall but
state the supposed points of conflict with
out extended argument. The acts In ques-
u "A. -
1902, the ordinance, of 1871, male, under the
compact with Virginia, both Of which com
paets were extended to Mississippi, and
made "unalterable aud s. final and con-
elusive by Congress, and SO accepted by
the State. These acts -annihilate1a a State,
they destroy the State CONSTITUTION Of Mis-
sissippi of 1917, accepted by Congress, as
we'll as the amended State Constitution OF
1885, established by the people. If there
WAS any fatal irreg glllarity in the State Con
stitutiOn OF 1866, which is deuied, that
would not territorialize the STATE or abOl-
ish the State Constitution of 1917. These
acts Deprive thefSeates Of shat representa
ton Id the two Houses of Congress con-
etantly and forever secured by the 7COnsti-
tuition. They substitute military rule fot
that the civil law: they repeal the right Of
hGbeds corpus In time of peace; they de-
prive men of life, liberty and property,
without due process Of law; they subject
them to arrest without warrant founded on
affidavit; they deprive them of the safe
guard of a grand and petit jury. If all
ktis may be rightfulty done, then these acts
may be cOnSiitutional.; .;ssn, lIl lad I.ss rs Z
Sec0Rd-The next question is, are there
proper parties to this suit as complainant
and defendants? The Constitution declares
that the judicial power shall xtend to al
cases in law and equity arising under this
Constitution. the laws ofatbe United States
and treaties made or which shall be made
under their authoritys'' And it also de-
elares that 9 in all cases affeeting bassa-
dors, other, public minister's and those il
which State is party, the Supreme
Court shall have original jurisdiction."-
This is case in equity, as will be shown
hereafter. It arises under the Const stitution
and State is party complainant. That 8
State may sue by original bill in the Su.
prene Court of the United States has been
settled by this Court,
1T is Important however, to consider
whether the President Of the United State;
can be made a party defendant to this bill
inasmueIF as there is no precedent directly
t0tthe point. Yet it is believed the qaes-
ki0n has been virtually settled by very nigh
authority .in tbs important, in this connec-
don, tOsmark the distinction between what
are called political powers and such as art
ministerial, In the exercise OF discretionary
or political powers Courts will not under
take to- control the actions of officers; bu
not so with regard to ministerial duties, ,sir
the exercise of which no one is above thC
law, however exalted his position. For
tunately we have neither a. King nor al
Emperor nor a Parliament who are omnip
otent or above the Constitution.
Our Constitution declares that "ithe judi
ciaI power shall extend to all cases,in Law
and equity arising under this Constitutions;
4Ee.saAnd thus the judiciary are made tn
guardians and projectors OF the Constitu
tiotI.s - 6is.s u - ssass Z. issa.iast
The President is but the creature of tn
COnstitution-One of the agencies creates
byis to carry it into practical operation
and IL would be strange indeed if he shou1'
be permitted t0aexeFt his agency in violat
ing that instrument. and then clain ex
emption from the process ofthe coHrtIwhos
dutytit is to- guard it against abuses, Ibe
cause he is the Chief Executive officer @
the Government, and especially when he
exerting mere ministerial duty, for tha
is all he does exert In executing an at @
Congress. He has no discretion in the mat
ter. The Constitution makes no distinction
as to parties. The case is the, criterion, n
matter who is plaintiff or who defendant
and if the President be exempt from tn
process of the law, heeis above the law
On this point it would, perhaps, be, suffi
cient to refer TO the very elaborate aud abl
decision of Chief Justice Marshall, deliv
cred on the trial of Aaron Burr. An appli
cation was made for subpoena dtces tecun
to be directed to the President of, tn
United States, and the application was re
sisted on the ground that the President wa
not emenable TO the process of the Cour
and could not be drawn from the idischarg
OF his duties at-thes seat of Government
and made to attend the Court sitting g
Richmond The Chief Justice 1dreW th
distinction between the President and tn
King of England. and held that all officer
in this country were subordinate to th
law and mast obey its mandate, aud there
lore sustaiDed the application. The sui
pena duces .tecltlp WAS only a command
the President to do particular. thing; th
injunction Is but command to him not
do a particular thing under void author
ty.' The principle is the same in the tw
cases, as well as the means of coerrin
obedienee, aud the reasoning of Chief Jul
tice Marshall completely reaches and Sc
ties the questions now before this Ceur
The Constitution provides that all office
may be impeached; but this does not e.
onerate them from personal liability fl
acts done under color of Ofice-the Pres
dent as well as other officers. The who
question lies Within narrow compas
The Constitution is supreme, all office
are subordinate to the supreme law, an
Consequently subordinate TO the commaI
of that department. whose duty it is TO el
force SubOrdinatiOn by declaring the meaI
ing, the extent and the limitations of ii
Constitution. .8''a7 IT, y5
If the President be exempt, why not a
his Cabinet officersP They all constitu
but parts of the Executive Department
the Government. Yet i'm the case of Mabl
V.Madison, Cranch, it was decided tn
the acts OF the Secretary of state were I'll
acts of che President, and that the Seer
tary might be subjected to the process
Sndadamus. Why would it not just as we
lie against the President? 1t would |
strange, indeed, TO hold that the subordi
ate is liable and may be sued for acts whit