Year: 1872

| ton and Generals Grant, Pope and others,
| to prevent the exectiOn of the recOnstruc
| ton laws.


The function of the national government
in establishing and maintaining repub-
lican governments in the States is political,
and not subject to review in the courts.
But, although the courts do not sit to try


mere political issues. still a case is not
thrown out of court because it happens to


involve a political question. Thus the
validity of the State government OF Rhode


Island against which the DOrr rebellion


was organized. was passed upon by the Su-


preme Court of the State in cases where
persons were prosecuted for acts committed
during the troubles. This decision was
noticed and relied upon by the Supreme
Court. Luther va. Borden. Every ap-
pointment to office made by the executive
is political act, and yet such acts are con-
stantly passed upon by the courts. A citi-
zen may levy war against the State; he
may collect and arm his political adherents,
issue his prOnunciamentO, declare the ex-
isting government unconstitutional, revOlu-
tionary, null and void, and fight. The
issue he makes is political, and the justif-
cation Of his conduct is political question,
still that does not prevent his being in
dicted for treason. tried by the courts, and
hung.


So if these defendants attempt to set up a
separate government or q separate branch
of the government, the validity and cOnsti-
tutiOnality Of their pretensiOns is legiti-
mate subject for judicial investigation and
determination. What is meant by the rule
that the courts will not pass upon political
questions is, that they will not pass upon
political questions whose determination is
vested in another department of the govern
ment. If every body of men claiming to be
the Legislature have the ultimate power of
deciding whether they are or not, we might
soon have reign of anarchy.


The Governor may use force to maintain
the constitution and enforce the laws. The
greater includes the less. If a proper case
is made, he may sue in the name Of the
State, and use the processes OF the civil
courts in order to effect the same ends in
peaceful way.


While l have been considering this i'm
pOrtant rule, l have been handed a brief
signed by an Amicus CnriG. The cOnsid-
Grafton Of one point in the case by this
geststh the writ Of injunction ought not
to issue to prevent any body Of men from
merely assembling, no matter what they
pretend to be, or what capacity they may
assume. He says: 1T must not be forgot
ten that American citizens have the right to
assemble and talk. When thus assembled
they may either act wisely or tOOlishly.


They may call themselves, or consider
themselves, for that matter, the House Of


Commons, constitutional convention or a


legislature. They may debate as such. may


assume to enact laws or frame q cOnstitu-


ton, and still they are within the protection
of those two great prerOgatlves-the right
to assemble and the right of free speech.
How can they be enjoined from SO acting
Do not these prerOgatives forbid such an
order"


when they 60 further and attempt to
enforce upon others their assumed powers,


or to compel others to join them, or to
obey their pretended enactments, they
Overstep the bound of right, and to the
extent of such attempted enforcement, be-
come w-breakers."
| think this view is correct The writ of
Injunction ought not to issue against the


defendants to the original action SO far as
to forbid their meeting aud assuming to be


House of Representatives. l take it they


have right to play legislature just as long


as they please If they make disturbance
they may be proceeded against as rioters;
if they attempt to seize other members in
order to fill up their body they may become


amenable to the process of contempt from
the House of Representatives, or may be ar


rested tor assault and battery. But it


would be a dangerous precedent to enjOin
them from pretending to be anything that
they may assume to be.


The injunction against the Treasurer and


Auditor would protect the State, so far as


1t would be within the power of this court
to afford protection. 1t effects all of the re-
suits desired.


The injunction prayed for against the de-
PENDANTS in the original petition WILL there
fore, he refused. The injunctions against
the Auditor of State and State Treasurer
will issue as prayed for in the supplemental
and amended petitions.