Mississippi v. Johnson,
71 U.S. 475 (1866)

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U.S. Supreme Court

Mississippi v. Johnson, 71 U.S. 4 Wall. 475 475 (1866)

Mississippi v. Johnson

71 U.S. (4 Wall.) 475


1. The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed.

2. It makes no difference whether such incumbent of the Presidential office be described in the bill as President or simply as a citizen of a State.

This was a motion made by Messrs. Sharkey and R. J. Walker, on 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, a citizen of the State of Tennessee and President of the United States, and his officers and agents appointed for that purpose, and especially E. O. C. Ord, assigned as military commander of the district where the State of Mississippi is, from executing or in any manner carrying out two acts of Congress named in the bill, one "An act for the more efficient government of the rebel States," passed March 2d, 1867, notwithstanding the President's veto of it as unconstitutional, and the other an act supplementary to it, passed in the same way March 23d, 1867, acts commonly called the Reconstruction Acts.

The former of these acts, reciting that no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republican State governments could be legally established, divided the States named into five military districts, and made it the duty of the President to assign to each one an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, either through the local civil tribunals or through military

Page 71 U. S. 476

commissions, which the act authorized. It provided further that, on the formation of new constitutions and certain conditions which the act prescribed, the States respectively should be declared entitled to representation in Congress, and the preceding part of the act become inoperative, and that, until they were so admitted, any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede it.

The second of the two acts related chiefly to the registration of voters who were to form the new constitutions of the States in question.

The bill set out the political history of Mississippi so far as related to its having become one of the United States, and

"that forever after, it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with the other States, and that any attempt to do so by secession or otherwise was a nullity,"

and she "now solemnly asserted that her connection with the Federal government was not in anywise thereby destroyed or impaired," and she averred and charged

"that the Congress of the United States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity."

The bill then went on:

"The acts in question annihilate the State and its government by assuming for Congress the power to control, modify, and even abolish its government -- in short, to exert sovereign power over it -- and the utter destruction of the State must be the consequence of their execution. They also violate a well known salutary principle in governments, the observance of which can alone preserve them, by making the civil power subordinate to the military power, and thus establish a military rule over the States enumerated in the act, and make a precedent by which the government of the United States may be converted into a military despotism in which every man may be deprived of his goods, lands, liberty, and life, by the breath

Page 71 U. S. 477

of a military commander or the sentence of the military commission or tribunal, without the benefit of trial by jury and without the observance of any of those requirements and guarantees by which the Constitution and laws so plainly protect and guard the rights of the citizen. And, the more effectually to accomplish this purpose, the said acts divide the ten Southern States into five military districts, and make it the duty of the President to assign an officer to the command of each district, and to place a sufficient force under him whose will is to be the law and his soldiers the power that executes it. It is declared to be his duty to protect all persons in their rights of person and property, to suppress insurrections, disorder, and violence, and to punish, or cause to be punished, all disturbers of the peace and criminals, and he may organize military commissions and tribunals to try offenders when he may think proper. But by what rule or law is he to judge of the rights of person or property? By what rule or law is he to arrest, try, and punish criminals? By what rule or law is he to judge whether they have committed crimes? The answer to these questions is plain -- by his own will, for, though he may adopt the State authorities as his instruments if he will, yet he may reject them if he will. A scope of power so broad, so comprehensive, was never before vested in a military commander in any government which guards the rights of its citizens or subjects by law. It embraces necessarily all those subjects over which the States reserved the power to legislate for themselves as essential to their existence as States, including the domestic relations, all the rights of property, real and personal, the rights of personal security and personal liberty, and assumes the right to control the whole of the domestic concerns of the State. These acts also provide that the governments now existing in the Southern States are but provisional governments, subject to the paramount authority of Congress, which may at any time abolish, modify, control, or supersede them."

It then charged that, from information and belief, the said Andrew Johnson, President, in violation of the Constitution and in violation of the sacred rights of the States, would proceed, notwithstanding his vetoes, and as a mere ministerial duty, to the execution of said acts as though they

Page 71 U. S. 478

were the law of the land, which the vetoes prove he would not do if he had any discretion, or that in doing so he performed anything more than a mere ministerial duty; and that with the view to the execution of said acts he had assigned General E. O. C. Ord to the command of the States of Mississippi and Arkansas.

Upon an intimation made a few days before by Mr. Sharkey, of his desire to file this bill, the Attorney General objected to it in limine, as containing matter not fit to be received. The Chief Justice then stated that while, as a general thing, a motion to file a bill was granted as of course, yet if it was suggested that the bill contained scandalous or impertinent matter, or was in other respects improper to be received, the court would either examine the bill or refer it to a master for examination. The only matter, therefore, which would now be considered was the question of leave to file the bill.

Page 71 U. S. 497

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