1. A bill in equity filed by one of the United States to enjoin
the Secretary of War and other officers who represent the Executive
authority of the United States from carrying into execution certain
acts of Congress on the ground that such execution would annul and
totally abolish the existing state government of the state and
establish another and different one in its place -- in other words,
would overthrow and destroy the corporate existence of the state by
depriving it of all the means and instrumentalities whereby its
existence might and otherwise would be maintained -- calls for a
judgment upon a political question, and will therefore not be
entertained by this Court.
2. This character of the bill is not changed by the fact that in
setting forth the political rights sought to be protected, the bill
avers that the state has real and personal property (as for
example, the public buildings &c), of the enjoyment of which,
by the destruction of its corporate existence, the state will be
deprived, such averment not being the substantive ground of the
relief sought.
This was a bill filed April 15, 1867, in this Court, invoking
the exercise of its original jurisdiction, against Stanton,
Secretary of War; Grant, General of the Army, and Pope, Major
General, assigned to the command of the Third Military District,
consisting of the States of Georgia, Florida, and Alabama (a
district organized under the Acts of Congress of the 2d March,
1867, entitled "An act to provide for the more efficient government
of the rebel states," and an act of the 23d of the same month
supplementary thereto), for the purpose of restraining the
defendants from carrying into execution the several provisions of
these acts, acts known in common parlance as the "Reconstruction
Acts." Both these acts had been passed over the President's
veto.
The former of the acts, reciting that no legal state governments
or adequate protection for life or property now existed in the
rebel States of Virginia and 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
Page 73 U. S. 51
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 commissions, which the act
authorized. It provided further that when the people of any one of
these states had formed a constitution in conformity with that of
the United States, framed by a convention of delegates elected by
male citizens &c., of twenty-one years old and upwards, "of
whatever race, color, or previous condition," who had been
residents in it for one year, "except such as may be disfranchised
for participation in the rebellion," &c., and when such
constitution should provide &c., and should be ratified by a
majority of the persons voting on the question of ratification, who
were qualified for electors as delegates, and when such
constitution should have been submitted to Congress for examination
and approval, and Congress should have approved the same, and when
the state by a vote of its legislature elected under such
constitution should have adopted a certain article of amendment
named to the Constitution of the United States, and ordaining among
other things that
"all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States, and of the state where they reside,"
and when such article should have become a part of the
Constitution of the United States, then that 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 them.
The second of the two acts related chiefly to the registration
of voters who were to form the new constitutions of the
Page 73 U. S. 52
states in question, and which registration by the act, could
include only those persons who took and subscribed a certain oath
set forth in such second act, as that they had "not been
disfranchised for participation in any rebellion or civil war
against the United States," &c.
The bill set forth the existence of the State of Georgia, the
complainant, as one of the states of this Union under the
Constitution; the civil war of 1861-1865 in which she was involved;
the surrender of the Confederate armies in the latter year and
submission to the Constitution and laws of the Union; the
withdrawal of the military government from Georgia by the
President, commander-in-chief of the army; and the revival and
reorganization of the civil government of the state with his
permission; and that the government thus reorganized was in the
possession and enjoyment of all the rights and privileges in her
several departments -- executive, legislative, and judicial --
belonging to a state in the Union under the Constitution, with the
exception of a representation in the Senate and House of
Representatives of the United States.
It set forth further that the intent and design of the acts of
Congress, as was apparent on their face and by their terms, was to
overthrow and to annul this existing state government and to erect
another and different government in its place, unauthorized by the
Constitution and in defiance of its guarantees, and that, in
furtherance of this intent and design, the defendants (the
Secretary of War, the General of the Army, and Major General Pope),
acting under orders of the President, were about setting in motion
a portion of the army to take military possession of the state, and
threatened to subvert her government and to subject her people to
military rule; that the state was wholly inadequate to resist the
power and force of the Executive Department of the United States.
She therefore insisted that such protection could and ought to be
afforded by a decree, or order, of this Court in the premises.
The bill then prayed that the defendants might be
restrained:
Page 73 U. S. 53
1. From issuing any order or doing or permitting any act or
thing within or concerning the State of Georgia which was or might
be directed or required of them or any of them by or under the two
acts of Congress.
2. From causing to be made any registration within the state as
specified and prescribed in the last of the aforesaid acts.
3. From administering or causing to be administered within the
state the oath or affirmation prescribed in said act.
4. From holding or causing to be held within the state any such
election or elections or causing to be made any return of any such
elections for the purpose of ascertaining the result of the same
according to said act.
5. From holding or causing to be held within the state any such
convention as is prescribed therein.
The bill, in setting forth the political rights of the State of
Georgia, and of its people sought to be protected, averred among
other things that the state was owner of certain real estate and
buildings therein (the state capitol, at Milledgeville, and
Executive mansion), and of other real and personal property,
exceeding in value $5,000,000, and that putting the acts of
Congress into execution and destroying the state would deprive it
of the possession and enjoyment of its property. This reference and
statement were not set up, however, as a specific or independent
ground of relief, but apparently only by way of showing one of the
grievances resulting from the threatened destruction of the state,
and in aggravation of it. And the matter of property was not
noticed in the prayers for relief.
Page 73 U. S. 71
The bill having been dismissed at the last term, MR. JUSTICE
NELSON now delivered the opinion of the Court.
A motion has been made by the counsel for the defendants to
dismiss the bill for want of jurisdiction, for which a precedent is
found in the case of
Rhode Island v. Massachusetts.
[
Footnote 1] It is claimed that
the Court has no jurisdiction either over the subject matter set
forth in the bill or over the parties defendants. And in support of
the first ground, it is urged that the matters involved, and
presented for adjudication, are political and not judicial, and
therefore not the subject of judicial cognizance.
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.
[
Footnote 2]
Page 73 U. S. 72
It has been supposed that the case of
Rhode Island v.
Massachusetts [
Footnote 3]
is an exception, and affords an authority for hearing and
adjudicating upon political questions in the usual course of
judicial proceedings on a bill in equity. But it will be seen on a
close examination of the case that this is a mistake. It involved a
question of boundary between the two states. Mr. Justice Baldwin,
who delivered the opinion of the Court, states the objection, and
proceeds to answer it. He observes, [
Footnote 4]
"It is said that this is a political, not civil, controversy
between the parties, and so not within the Constitution or
thirteenth section of the Judiciary Act. As it is viewed by the
Court on the bill alone, had it been demurred to, a controversy as
to the locality of a point three miles south of the southernmost
point of Charles River is the only question that can arise under
the charter. 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 between the states. In the first aspect of
the case it depends on a fact; in the second, on the law of equity,
whether the agreement is void or valid, neither of which present a
political controversy, but one of an ordinary judicial nature of
frequent occurrence in suits between individuals."
In another part of the opinion, speaking of the submission by
sovereigns or states of a controversy between them, he
observes,
"From the time of such submission the question ceases to be a
political one, to be decided by the
sic volo, sic jubeo of
political power. It comes to the Court to be decided by its
judgment, legal discretion, and solemn consideration of the rules
of law appropriate to its nature as a judicial question, depending
on the exercise of judicial powers, as it is bound to act by known
and settled principles of national or municipal jurisprudence, as
the case requires.
Page 73 U. S. 73
And he might have added what indeed is probably implied in the
opinion, that the question thus submitted by the sovereign or state
to a judicial determination must be one appropriate for the
exercise of judicial power, such as a question of boundary or, as
in the case of
Penn v. Lord Baltimore, a contract between
the parties in respect to their boundary. Lord Hardwicke places his
right in that case to entertain jurisdiction upon this ground."
The objections to the jurisdiction of the Court in the case of
Rhode Island against Massachusetts were that the subject matter of
the bill involved sovereignty and jurisdiction, which were not
matters of property, but of political rights over the territory in
question. They are forcibly stated by the Chief Justice, who
dissented from the opinion. [
Footnote 5] The very elaborate examination of the case by
Mr. Justice Baldwin was devoted to an answer and refutation of
these objections. He endeavored to show, and we think did show,
that the question was one of boundary, which of itself was not a
political question, but one of property, appropriate for judicial
cognizance, and that sovereignty and jurisdiction were but
incidental and dependent upon the main issue in the case. The right
of property was undoubtedly involved, as in this country, where
feudal tenures are abolished, in cases of escheat, the state takes
the place of the feudal lord by virtue of its sovereignty as the
original and ultimate proprietor of all the lands within its
jurisdiction.
In the case of
Florida v. Georgia, [
Footnote 6] the United States were allowed to
intervene, being the proprietors of a large part of the land
situated within the disputed boundary, ceded by Spain as a part of
Florida. The State of Florida was also deeply interested as a
proprietor.
The case bearing most directly on the one before us is
Cherokee Nation v. Georgia. [
Footnote 7] A bill was filed in that case and an
injunction prayed for to prevent the execution of certain acts of
the Legislature of Georgia within the territory of the Cherokee
Nation of Indians, they claiming
Page 73 U. S. 74
a right to file it in this Court, in the exercise of its
original jurisdiction, as a foreign nation. The acts of the
legislature, if permitted to be carried into execution, would have
subverted the tribal government of the Indians and subjected them
to the jurisdiction of the state. The injunction was denied on the
ground that the Cherokee Nation could not be regarded as a foreign
nation within the Judiciary Act, and that therefore they had no
standing in court. But Chief Justice Marshall, who delivered the
opinion of the majority, very strongly intimated that the bill was
untenable on another ground -- namely that it involved simply a
political question. He observed
"that the part of the bill which respects the land occupied by
the Indians, and prays the aid of the Court to protect their
possessions may be more doubtful. The mere question of right might
perhaps be decided by this Court in a proper case with proper
parties. But the Court is asked to do more than decide on the
title. The bill requires us to control the Legislature of Georgia
and to restrain the exertion of its physical force. The propriety
of such an interposition by the Court may be well questioned. It
savors too much of the exercise of political power to be within the
province of the judicial department."
Several opinions were delivered in the case, a very elaborate
one, by Mr. Justice Thompson, in which Judge Story concurred. They
maintained that the Cherokee Nation was a foreign nation within the
Judiciary Act, and competent to bring the suit, but agreed with the
Chief Justice that all the matters set up in the bill involved
political questions with the exception of the right and title of
the Indians to the possession of the land which they occupied. Mr.
Justice Thompson, referring to this branch of the case,
observed:
"For the purpose of guarding against any erroneous conclusions,
it is proper I should state that I do not claim for this Court the
exercise of jurisdiction upon any matter properly falling under the
denomination of political power. Relief to the full extent prayed
for by the bill may be beyond the reach of this Court. Much of the
matters therein contained by way of complaint would seem to depend
for relief upon
Page 73 U. S. 75
the exercise of political power, and as such appropriately
devolving upon the executive, and not the judicial, department of
the government. This Court can grant relief so far only as the
rights of persons or property are drawn in question and have been
infringed."
And in another part of the opinion he returns again to this
question, and is still more emphatic in disclaiming jurisdiction.
He observes:
"I certainly do not claim as belonging to the judiciary the
exercise of political power. That belongs to another branch of the
government. The protection and enforcement of many rights secured
by treaties most certainly do not belong to the judiciary. It is
only where the rights of persons or property are involved and when
such rights can be presented under some judicial form of
proceedings that courts of justice can interpose relief. This Court
can have no right to pronounce an abstract opinion upon the
constitutionality of a state law. Such law must be brought into
actual or threatened operation upon rights properly falling under
judicial cognizance, or a remedy is not to be had here."
We have said Mr. Justice Story concurred in this opinion, and
Mr. Justice Johnson, who also delivered one, recognized the same
distinctions. [
Footnote 8]
By the second section of the third article of the Constitution,
"the judicial power extends to all cases, in law and equity,
arising under the Constitution, the laws of the United States,"
&c., and as applicable to the case in hand, "to controversies
between a state and citizens of another state," which
controversies, under the Judiciary Act, may be brought, in the
first instance, before this Court in the exercise of its original
jurisdiction, and we agree, that the bill filed presents a case
which, if it be the subject of judicial cognizance, would in form
come under a familiar head of equity jurisdiction -- that is,
jurisdiction to grant an injunction to restrain a party from a
wrong or injury to the rights of another where the danger, actual
or threatened, is irreparable or the remedy at law inadequate. But,
according to the course of
Page 73 U. S. 76
proceeding under this head in equity, in order to entitle the
party to the remedy, a case must be presented appropriate for the
exercise of judicial power; the rights in danger, as we have seen,
must be rights of persons or property, not merely political rights,
which do not belong to the jurisdiction of a court, either in law
or equity.
The remaining question on this branch of our inquiry is whether,
in view of the principles above stated and which we have endeavored
to explain, a case is made out in the bill of which this Court can
take judicial cognizance. In looking into it, it will be seen that
we are called upon to restrain the defendants, who represent the
executive authority of the government, from carrying into execution
certain acts of Congress, inasmuch as such execution would annul
and totally abolish the existing state government of Georgia and
establish another and different one in its place -- in other words,
would overthrow and destroy the corporate existence of the state by
depriving it of all the means and instrumentalities whereby its
existence might and otherwise would be maintained.
This is the substance of the complaint and of the relief prayed
for. The bill, it is true, sets out in detail the different and
substantial changes in the structure and organization of the
existing government as contemplated in these acts of Congress,
which, it is charged, if carried into effect by the defendants,
will work this destruction. But they are grievances, because they
necessarily and inevitably tend to the overthrow of the state as an
organized political body. They are stated in detail as laying a
foundation for the interposition of the court to prevent the
specific execution of them, and the resulting threatened mischief.
So in respect to the prayers of the bill. The first is that the
defendants may be enjoined against doing or permitting any act or
thing within or concerning the state which is or may be directed or
required of them by or under the two acts of Congress complained
of, and the remaining four prayers are of the same character,
except more specific as to the particular acts threatened to be
committed.
Page 73 U. S. 77
That these matters, both as stated in the body of the bill and
in the prayers for relief, call for the judgment of the court upon
political questions and upon rights not of persons or property but
of a political character will hardly be denied. For the rights for
the protection of which our authority is invoked are the rights of
sovereignty, of political jurisdiction, of government, of corporate
existence as a state, with all its constitutional powers and
privileges. No case of private rights or private property infringed
or in danger of actual or threatened infringement is presented by
the bill in a judicial form for the judgment of the Court.
It is true, the bill, in setting forth the political rights of
the state and of its people to be protected, among other matters,
avers, that Georgia owns certain real estate and buildings therein,
state capitol, and executive mansion, and other real and personal
property, and that putting the acts of Congress into execution and
destroying the state would deprive it of the possession and
enjoyment of its property. But it is apparent that this reference
to property and statement concerning it are only by way of showing
one of the grievances resulting from the threatened destruction of
the state and in aggravation of it, not as a specific ground of
relief. This matter of property is neither stated as an independent
ground nor is it noticed at all in the prayers for relief. Indeed,
the case as made in the bill would have stopped far short of the
relief sought by the state, and its main purpose and design given
up, by restraining its remedial effect simply to the protection of
the title and possession of its property. Such relief would have
called for a very different bill from the one before us.
Having arrived at the conclusion that this Court, for the
reasons above stated, possesses no jurisdiction over the subject
matter presented in the bill for relief, it is unimportant to
examine the question as it respects jurisdiction over the parties
defendants.
Bill dismissed for want of jurisdiction.
[
Footnote 1]
37 U. S. 12
Pet. 669.
[
Footnote 2]
Nabob of Carnatic v. East India Co., 1 Vesey Jr.
375-393,
S.C., 2
id. 56-60;
Penn v. Lord
Baltimore, 1 Vesey 446-447;
New York v.
Connecticut, 4 Dall. 1;
Cherokee
Nation v. Georgia, 5 Pet. 1,
30 U. S. 20,
30 U. S. 29-30,
30 U. S. 51,
30 U. S. 75;
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S.
733-734,
37 U. S.
737-738.
[
Footnote 3]
37 U. S. 12 Pet.
657.
[
Footnote 4]
Page
37 U. S.
736.
[
Footnote 5]
37 U. S. 12
Pet. 752,
37 U. S.
754.
[
Footnote 6]
58 U. S. 17 How.
478.
[
Footnote 7]
30 U. S. 5 Pet.
1.
[
Footnote 8]
5 Pet.
30 U. S.
29-30.
THE CHIEF JUSTICE:
Without being able to yield my assent to the grounds stated in
the opinion just read for the
Page 73 U. S. 78
dismissal of the complainant's bill, I concur fully in the
conclusion that the case made by the bill is one of which this
Court has no jurisdiction.
