Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-11
Un,,ed states supreme Court


case of the State Of Georgia ys. Hon. +.
NJ. Stanton. Secretary of War, Gen. Grant
and Mai. Gen. Pope, the last named, at
the time the bill was filed, commanding
the third military district of Georgia,
Alabama and Florida, designated by act
of Congress, and approved March 2, 1867,
entitled an act to provide for the more
efficient government of the Rebel States,
and acts supplementary thereto, passed
23d Of same month. The bill was filed by
the State of Georgia, and prays for an in
junction for the purpose of restraining the
defendants from carrying into effect the
several provisions of these acts, and sets
forth the existence of Georgia as one of
the States of the Union; and further, that
on the surrender Of the Confederate army
in 1868, at the close of the civil war, the
State was in the possession and enjoyment
of all the rights belonging to State of tn
Union, under the constitution and laws of
the United States, and as such entitled 10
representation in both houses of Congress.
The bill further sets forth that the inten-
ton and design of these acts are apparent
on their face, and by the terms to over
throw the existing State governments, and
bliCNtlNl III bllOll iihiC OLAiCA5 DOl aNihOl-
iEer by the constitution. In furtherance
of this intent the Secretary of War, Gen.
Grant and Gen. Pope, acting under orders
from the President, were about setting in
molten the portion Of these statutes to take
military possession and subvert the govern
ment of the State of Georgia, thereby sub
iecting the people thereof to military rule,
and the State being wholly inadequate to
resist the powers of the several depart
ments therefore insisted that protection
ought to be afforded by decree of the
Supreme Court. The bill next prayed
lst. That defendants might be restrained
from issuing any order ordering any act or
thing within the State of Georgia injurious
TO said State, or which might be required
| of them by act of Congress-
%. To cause the defendants to delay the
registration in Georgia, az prescribed in the
last named acts
Sd. To restrain them from administering,
or causing to be administered, the oath pro
7ided far in that act.
4th. To prevent an election or returns in
such elections from being received accord
ing to the acts in question and
5th. From holding or causing to be held
any convention as prescribed therein.
Associate Justice Nelson having set forth
these premises, but at much greater length
| than above given, said in substance that
the motion had been made by the 1aunsel
| of defendants to dismiss for want of iuris-
| diction and as one without precedent. 1t
was claimed that the court had no iuris-
diction over either the subject in the bill
or over the parties presented. First, on the
| ground, supported by argument, that il was
a political and not judicial question, and
| therefore it was not subject for cognizance
by this court. The distinction between the
judicial and political questions resulted
| from the organization of the government,
the Executive, Legislative and Judicial,
and from the limitation of the powers OF
each under the constitution the judicial
powers are vested inthe judicial department
| and the political powers in the two other
| departments the distinction between the
| jadicial and the political power, so gene
! rally admitted. The court deemed it neces-
sary to do nothing more than to refer The
same to the authorities.
The case of Rhode Island against the
| State of Massachusetts, it has been sup
posed, would afford authority for hearing
and deciding as to the question in connec-
ton with the bill of iniquity, but, on a
close examination, this was found TO be a
mistake. There was a question of bound
airy between these two States, and not one
cf a political character.
In the case of Florida against Georgia,
the United States were allowed to inter-
yene being proprietors of a large portion
of the land situated within the disputed
boundary, which was coded to the United
States by Spain. Florida also being inter
ested as proprietor, the case bearing most
directly on this one is that of the Cherokee
nation against the State of Georgia. The
bill filed in this case, and injunction prayed
for, to prevent the execution of certain
acts of Georgia against the Cherokee ma
ton. The latter claimed the right to APP
pear in court as a nation. The acts of the
Legislature if carried into execution,
would have destroyed and disabled the
condition of the Cherokees, aud subjected
them to the authority of the State. 1t was
therefore decided the Cherokee was not 3
foreign nation in the sense referred to in
the constitution of the United States.
Chief Justice Marshall said the bill was
untenable on another ground, namely: it
involved political question.
Justice Nelson referred to several high
Authorities in support of the above views,
and showed that political power did not be-
long to the Judiciary, and the court could
have no right to pronounce merely an alb.
stract opinion on the constitution or State
laws. 1t might, however, decide on all
statutes properly falling under judicial
authority, by the "a section, article Sd of
the constitution of the United States This
provided that the judicial power shall
extend to all cases in law and equity
arising under the constitution and the
law of the United States and treaties made
already, OF which shall be made under
authority, to all cases efiecting Ambassa-
dors and other public Ministers and ConsuIs
to sill cases of admiralty, msratime juris-
dictiOn, and to controversies to which the
United States shall be party to the con
iroversies between two or more States,
between a State and citizens of another
State, between citizens of different States
and between citizens Of same State, claim
ing lands under grants in different States,
and between States and citizens thereof
and foreign States, citizens or subjects
The bill fled by the State of Georgia,
prays for an injunction to restrain defsnd-
ants from executing certain parts of
acts of Congress being an injury to the State,
would thereby result, but according to Law
and the precedent of the order it entities the
parties to relief, and the case must he pro-
perry presented for the exercise of judicial
power, and the case must refer to the rights
Of persons and property and not political
questions merely which do not belong to
the judiciary, either in law or equity, to
view the principles which under the con-
stitution and statutes the court had endea-
vored to explain. The question was
whether the court could take cognizance
Of the question now before it. The court
was called on TO restrain the defend
ants, who represented the Executive
Department from putting into execution
certain acts coming up which it was
claimed would overthrow the existing
State government in Georgia and establish
a different one in its stead, in other words,
destroy It's corporate existence as State.
Such is the substance Of the bill 1t called
for Judgment in the court on a political
question and not one involving persons
and properly. No question OF person or
property, or threatened danger TO them,
was presented in the bill in form of juSti-