The New York herald., 1867-05-04
the GREAT INJUNCTION CASES.
The State of Mississippi in the
SupIeme Court.
Argument Of Robert J. Walker in Favor Of
0bstructing the Reconstruction Act


respectively against Secretary Stanton General Grant
and the military commanders Of the respective districts
10 restrain them from carrying into effect the Military
Reconstruction laws, was continued to-day by Mr..
Robert J. Walker.
Mr. WALKER said that he never rose to address any
tribunal with deep OF tho solemnity OF the
occasion and OF the issues involved tho
controversy. The Of the constitution Of the
American government, and Of segovernment through
out the world, trial: no believed upon its
rst trial. and be decided for this country
for postery and for all the world whether written
stitutions parchment scrollswhoher they
words upon the sands be swept away by the
Srst angry surge of popular passions which may roll
them-whether they be evaded by tech
nical issues pleas Of want Of Jurisdiction.
whether they furnish that remedial process
which wall enable the judicial tribunals TO carry
them into effect II nHa question whether it is practc-
able to divide the three separate depart
mens, 70 be omnipotent, aud whether by power.
claimed to be POLITICAL absence Of authority
the part OF the judicial tribunals to inquire into the
toversy, the constitution main aimed and vind
Gated II for himself OF profound regret
that his learned colleague, Mr. Sharkey, long the
honored chisi Justice Of Mississippi and who had do
voted his life the defence of the Union aud eonsitu
ton In the heart or the rebellion rskcd his life
day by day IA defence of these geeas principles had
This came up motion TO DISMISS for OF
Jurisdiction Such motion, il be entertained at
all, can only be regarded in the nature OF general
demurrer, not in this to the parties but for
want Of rower the part OF the Court inquire into
the questions involved in the controversy. Such
question admitted all the facts stated in the BILL and
also admitted all the inferences fairly deducble
those facts in their strongest application the case
simply insisted that, admitting these facts and these
fr0m thern tn hc true tha forr
cannot grant relief. II said that this political
question. There should be no confusion OF terms
What rs the difference between political aud judicial
or constitutional question. when aC OF Congress in
CONTROVERSY There is difference whatever To say
that the Court viii inquire into this because
act Of Congress which It Is called examine
involves an exercise oi political power is TO admit
that Congress had power To pass the act,
and that, therefore. it constitutional case
When the learned Attorney General addressed Court
IN opposition 10 the Jurisdiction, UPON tDat grcand, he
still presented constitutional queson:-Had Congress-
the political power 10 pass theacr Was tie discretion
vested IN them by the constitution comprehensive
that beyond the inQairins power the judicial
department. That is only another form OF saying that
IL y constitutional law because, IL Congress naa he
po power pass It. the constitutional What
the political questions which could NOT
examine? Are they oil laws passed by Congress
Beginning with the firs In Dallas, down to the
latest reported decisions OF this term ne challenged the
when law Of Congress was ' presented TO %'I .hs
country on the one side and the constitution The
other, the Court did not consder IL It's duty inquire
into the consltutionaliiy oil the Political
which the courts cannot inquire into were diuer-
ent dt scripton When time after tho battle OF
San Jacino the President acknowledged the indepcn-
dence OF Texas which an executive act, the Court
declared thai that was political power vested in the
President; In otner words constitutional power
vested 10 the President; for neither Congress he
President under the name Of political powers Possesses
any other than constitutional powers. II being
political and therefore consuiut onai
power vested in the President the Court
ppecuded from all inquiry the propricty of
that executive act So also in the case OF Luther
Borden, from Rode Island An attempt was made bv
fnsurrecfion overthrow the charter Of govern
mont Of Rhode Island and inaugurate q popular
government This resisted by the charter govern
nen and resisted successfully. II ress,ed n the
judicial orum the courts sustaining the legality OF tho
charter government Il was resisted successfully in
and acknowledged by the President and aid gwen
IN It's support That the Coir held, presen,ed u
political question between the ,wo governments
None OF these cases OF Congress- and in nu-
he Court han passed upon the const'tu-
tiepaity Of such acts. II the Court had ght
the inquiry and pronounce in favor Of the constiiu
touali,y o. law, IL had the same power toinquire and
pronounce against the constitutonality OF law be-
cause the question OF Jurisdiction could not depend 4
upon the ultimate results OF the na hearing Here
den, who had been greatly oensured, espcc.ay by q
large portion Of the secession press Of the SOUTH for
carrying into execut on an ac. which he had vetoed
upon the ground that Il was uncon -,itutionai When
bill Is presented to the President he bound inquire
inso ns coustuonaty before bc gives il his approval
He IA then cooperang with tho legislative department
OF the government II he declines sign Il 10 is
~ BY o 81
tion OF the President Ana It necessarily followed that
under the obligation imposed upoa him by the consu
much bound to execute that act ~ one which met his
fullest approval whyf Because the President pos
sseeed judicial power did Congress- II Congress
attempt 10 convert itself into judicial body
and the two houses should go into committee Of the
whC,e TO inquire into the constiiutionalty Of
act lis resolution that subject would
ncre nuity, because y possessed lcgislavc power
haro right 70 judge coasi,uttona,y or an act
of Cpngess alter IL became aw, THAI being judicial
sc ara imporan, goes TO the very s,st Of the
ivaisr. When the application Is mads for mandamus
ttconpci the per orrnancc Of an act injunction TO
N vtrair the execution Of illegal II depends ON
tsfr the executive officers have dlscrcton either
a ber pleasure II they no dis sslion and ihe
Law positively commands the execution Of y particular
sSs iorbids perempsoriy The snscasoa Of an act
shsn wrre u can b adc udicisl question the appeal
ssss cooss.uasssi one. Ia nus ease the Prcs
dent - no dIscreuon esceps 70 execute the law The
saDord 1sss ofcsm whe are eosyng hs cs@uands have
sdsct md there = no distinction. IN such
ease, bs~ssn 40 essoasivs and ministerial
sss duty, The civ differences being sSsi mio.
sfsrai dSsv where The esoer ducsston but
pssssnisd y one or Shs acooussns odhcen Of
hs TrsssuIY dsp.smsnt or Oomss up ey sPps.i
bscsuse jcdgnsaf snd dsssssion b. sEsssissd,
ss;sssr Sy mssdsmas nor i@5sscsss: but vsss sns
sefcsr haa no dDwssion, In tho cass Of Marey W
s.s sss. : s.o me q s..
posaivs end psrsupsoy, end ocsr dirscsea - %
20 particular ae1 WfrA settled psiuc1pts IN
tbs coansv thas from which We derive our tuEts
ovudsncs has the enuus win nBnaA mandnmus y cum
pei the pssfovmancs os the acs reauiTsd bv ag, - =.
tnjunctcn restrain the - forbi6eu By lau bscneee
" snch cases the hes left diretoos but = Ahe
~ Of W. ohcsr 70 obey II In Ae presns msennes.
shs ressdsns end those acting oondioucs - bb -
dess, have No discretion hnt 70 ~ cute this aw:
ons NE hv be unconsseskpnal = snen
. - disobsy.d and treated sss a. : dead issssrS
70 me ne consluiion psovidcs for - cxscs contin
eeny oy ascang that the federal tribunals shall have
co9nmsnce 10 AL oSee arssing so
sws md treaties q the Unied Eis,er ard BY making
bne supene Oouu tse nna aibttsv the con-
Union and permanest affect until decvs Z reversed
~ tne sane uounsL whes the hcsidea& and his
b. unonsttusonal ths aivss y cltzsns