President's Law doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it.1 In the Neilson case (supra, p. 376), the power, primarily lodged with the President, was shared with the Senate in its execution. In the Borden case (supra, p. 380), the power, primarily lodged in the Congress, is delegated to the President, who becomes the agent of the Congress in deciding the facts which justify intervention on behalf of the Government of the Union. In the Suffolk Ins. Co. Case (supra, p. 378), the power pertained to the President, as in the Prize Cases (2 Black, 635), decided by the Supreme Court in 1862. The facts in these cases are peculiarly American, and the case has an interest of its own far exceeding that of Luther v. Borden. The States of the Union were at war. The ports of the Southern States had been blockaded by Mr. Lincoln, then President of the United States. If the blockade was legal, that is to say, if the President had the right to close the ports of the Southern States by blockade without an act of Congress declaring war, then certain vessels, violating this blockade, could be properly seized and confiscated; whereas, if a declaration of war by Congress was necessary, the proclamation would have been without binding effect, inasmuch as a blockade presupposes the existence of a state of war. The question, therefore, before the court was, as stated by Mr. Justice Grier, who delivered its opinion: Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States? 2 It is to be observed that, by the Constitution, the law of nations is recognized' and that, by repeated decisions of the Supreme Court, it is declared to be a part of the law of the land. By the law of nations, a proclamation of blockade recognizes the existence of war and confers upon the parties to it both the rights and duties of belligerents in a war between nations. On the very point in question, Mr. Justice Grier said: Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands." The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.1 If, however, the action of Congress was necessary in the case of a Civil War, which could not be declared as in the case of a war against a foreign nation, the learned Justice considered the acts of Congress relating to the war as a sufficient declaration of its existence. Speaking on behalf of the majority, he considered the act of Congress of 1861, "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States," as a ratification of the act of the President, if indeed one were needed. In this part of his opinion he relied upon the following statement of Mr. Justice Story in the case of Brown v. United States decided in 1814 (8 Cranch, 133): I am perfectly satisfied. . that no subject can legally commit hostilities, or capture property of an enemy, when . the sovereign . has prohibited it. But suppose, he does, I would ask, if the sovereign may not ratify his proceedings; and thus, by a retroactive operation, give validity to them? The court therefore concluded, in the language of Mr. Justice Grier: On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.2 Further light is thrown upon this subject by three cases, in two of which the President of the United States is concerned; in the last, a State of the Union, in each of which the court refused to accept jurisdiction because the questions were political, and as such, beyond the scope of judicial power. In State of Mississippi v. Johnson, (4 Wallace, 475), decided in 1866, Mr. Chief Justice Chase delivering the unanimous opinion of the court, stated the facts as follows: A motion was made, some days since, in behalf of the State of Mississippi, for leave to file a bill in the name of the State, praying this court perpetually to enjoin and restrain Andrew Johnson, President of the United 1 Ibid., 670. 'Ibid., 671. States, and E. O. C. Ord, general commanding in the District of Mississippi and Arkansas, from executing, or in any manner carrying out, certain acts of Congress therein named. The acts referred to are those of March 2d and March 23d, 1867, commonly known as the Reconstruction Acts. The Attorney-General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court.1 The case was elaborately argued by counsel for Mississippi and by the Attorney General on behalf of the President, the counsel for Mississippi maintaining that the duty cast upon the President by the Acts in question was ministerial and that the performance of a ministerial act could be compelled by mandamus or enjoined by injunction. The case, as considered by the court was, as stated by the Chief Justice, "Can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional?” The Chief Justice first defined a ministerial duty, then invoked adjudged cases in support of the definition, and finally distinguished the duty imposed upon the President by the Statute which, in his opinion and in the opinion of the court, required not merely discretion, but discretion of the highest possible degree. Thus: A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. For this he vouched, in first instance, the case of Marbury v. Madison, (1 Cranch, 137) of which he said: A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction.2 And in the second, the case of Kendal, Postmaster-General v. Stockton & Stokes, (12 Peters, 527), the Chief Justice said: An act of Congress had directed the Postmaster-General to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them; and that officer refused to credit them with certain sums, so found due. It was held that the crediting of this money was a mere ministerial duty, the performance of which might be judicially enforced.1 After stating that in each of these cases nothing was left to discretion, that there was no room for the exercise of judgment, and that the law required the performance of a single specific act rightly compellable by mandamus, the Chief Justice thus distinguished the case before him: Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as “an absurd and excessive extravagance." It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion. After declaring that the Congress is the Legislative Department of the Government, that the President is the Executive Department, that: Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The Chief Justice thus stated the reason obtaining in this category of cases: The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by com1 Ibid., 499. 1 pliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves.1 The State of Georgia presented practically the same question in a different form. If the President of the United States might not be enjoined why not the Secretary of War and the Commanding Officers of the Army from carrying into effect the provisions of the Reconstruction Acts? This counsel for Georgia attempted to do in the State of Georgia v. Stanton, (6 Wallace, 50), decided in the December term, 1867, adverse to the contention of Georgia, and in accordance with the opinion of the Court in the case of Mississippi v. Johnson. Mr. Justice Nelson who delivered the opinion of the court first noted the objection that the questions presented for adjudication were "political and not judicial, and therefore, not the subject of judicial cognizance"; he next adverted to the importance of the objection, and continued: This distinction results from the organization of the government into the three great departments, executive, legislative, and judicial, and from the assignment and limitation of the powers of each by the Constitution. The judicial power is vested in one supreme court, and in such inferior courts as Congress may ordain and establish: the political power of the government in the other two departments. The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. (Nabob of Carnatic v. The East India Co., 1 Vesey, Jr., 375–393, S. C., 2 Id. 56-60; Penn v. Lord Baltimore, 1 Vesey, 446-7; New York v. Connecticut, 4 Dallas, 4-6; The Cherokee Nation v. Georgia, 5 Peters, 1, 20, 29, 30, 51, 75; The State of Rhode Island v. The State of Massachusetts, 12 Ib., 657, 733, 734, 737, 738.)2 He then took up The State of Rhode Island v. The State of Massachusetts, which was regarded by counsel as an exception, and by an examination of the opinion of Mr. Justice Baldwin in that case, showed that the question was judicial in its nature, and that it was only political in the sense that the decision of the boundary between the two States involved sovereignty and political rights as incident to the ownership of the land. He quoted with approval the following statement from Mr. Justice Baldwin's opinion: Taking the case on the bill and plea, the question is, whether the stake set up on Wrentham Plain by Woodward and Saffrey, in 1842, is the true point from which to run an east and west line as the compact boundary 14 Wallace, 500-1. 26 Wallace, 71. |