The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1868-03-06

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have had the law before the Court by
a writ of quo s0arran,o, served on
Secretary STANTON, without defying
Congress or threatening revolution.
That he made no effort of this kind,
shows that the plea of bringing the
matter before the Court " was an after
thought.
Second-That the Tenure of Office
Law is unconstitutional Suppose it
is. Why did not Mr.. JOHNSON have
it so decided before violating its
plainest provisions. Until it had
been pronounced unconstitutional by
the proper tribunal, the President was
under obligation to obey the law, and
he violated it at his peril. The duties
of the Executive, under the Consti-
tuition, are very clearly set forth by
the Hon. ROBERT J. WALKER, in
his argument before the Supreme
Court in the Mississippi case. Mr..
WALKER has been regarded as one
of Mr.. JOHNsoN's frmest supporters,
and, in view Of this fact, his argument
ought to be entitled to the more con-
sideration on the part Of those who
are bowling about the unconstitu-
tional acts Of Congress. We make
the following extract from Mr..
Walkers argument:
And here let me say a word in vim
dication of the President, who has
been greatly censured, especially by
large portion of the secession press
of the South for carrying into exc
cutiOn an act which he had vetoed
upon the ground that it was uncon-
stitutional When a bill is presented
to the President, he is bound to in
quIre into It's cOnstitutiOnality before
operating with the legislative depart
ment of the Government If he de-
clines to sign it, and it is passed by a
twO-thlrds majority of Congress, 1t Is
as much an act Of Congress as If 10 had
recei0ed the sanction of the President;
and 1t necessarily fOtLolos that, under
the obligation imposed on hins by the
Constellation to see that the latos are
faithfully e.recUted, he is as much
bound 10 execute that act as one
aohich met has fullest approval. Why2
Because the President possesses no judi
ctGL p0lCer; nor does Congress. If
Congress were to attempt to convert
itself into judicial body. and the two
Houses should go into Committee of
the Whole to inquire into the consti-
nationality Of particular act, their
resolution on that subject would be
a mere nullity, because they possess
legislative power and not executive or
judicial power So the President had
no right to judge of the constitution
ality of an act of Congress after it had
become law, that being a judicial
question.
If this were not so, it would be the
right, and therefore the duty of every
successive President, so soon as he
was inaugurated, to take up the
hundreds OF volumes containing all
the acts of Congress, and inquire ju-
dicially which of them were consti-
tutional and which not, and carry
into execution those which he believed |
to be constitutional and refuse to exc
cute those which he believed to be un-
constitutional. sag the President
aoOutd be atsWrpiag the judi
ciGL function and overture Uing
the distinction created BIZ the |
Constitution betsVeea the co-Ordi- |
nate departments Of the Government |
If he mere to attempt to exercise such q |
p0lCer as that. He has no DISCRETION |
except TO execute the act; and that i'm |
pOrtdnt fact goes to the Gerry gist Of the |
matter. When an application is made |
for a mandamUs to compel the per-
formance of an act, or an injunction !
to restrain the execution of an illegal /
act, 1t depends upon whether the ex-
ecutive officers have a discretion In /
either case to judge of the law, and |
right to execute it or not at their |
pleasure. Ifthey have no discretion,
and the law positively commands the |
execution OF particular act, the rem
edy is by mandamus to act afirma-
lively; if the law forbids peremptorily /
the execution of an act, then, where |
1t can be made a judicial question, /
the appeal is to the judicial tribunals, |
and es"aeially where the question is a
cOnstIUJ sional one. In this case the |
President has no discretion e.Ccept to /
execute tEs. tHto; the subordinate Off
GERS who are obeylng his commands
have no discretion, except to carry
his orders into effect; and there Is no
discretion IA such a case betlccen an
ececutiUe and a ministerial duty.
We will take pleasure in copying
any reply to the above argument that
may be furnished by any of the
a" small fry" Democrats who are so
noisy about the usurpations of Con-