Argument against filing. sists, to keep him in jail without any remedy, for in cases of commitment for contempt no habeas corpus, as every one knows, can ever reach the prisoner. No other court can release the President from this imprisonment, by habeas corpus or otherwise. He is there a close prisoner of this court, and to remain there until he dies, unless he performs the orders of the court. What then? The President deposed; the President made incapable of performing the duties of his office! Certainly a jail, or a dungeon it may be, is not a fit place to perform the duties and functions of President. You have made the President incapable of performing his duties. What is the effect of that? You have removed the President, for that is one of the conditions in which the President's office becomes vacant, that he is incapable of performing his duties. You have done it more effectually than by impeachment, for an impeachment does not deprive him of liberty; an impeachment sets him at large, and simply takes from him his official character; but the order of this court under these circumstances takes him as President and puts him in jail, and keeps him there until he performs what this court orders him to perform. That vindicates, it is true, the right of the State of Mississippi, or it may vindicate the right of any individual who has some claim to have an injunction against the President; but as to all the rest of us! as to the people, as to the government itself, what becomes of them under these circumstances and the exercise of that power? What becomes of the public safety, the salus populi, the suprome law of all laws, that this court, a co-ordinate branch of the government, bound to respect the other branches of the government, not to interfere with their duties or their privileges or their rights-that this court has in effect taken, destroyed, annihilated the President who is put there by the people? You leave the government without a head; you leave the office vacant, and the people must go about to get another President to perform these functions and these duties. In the meantime, until that is done, everything is at large, and there is not a law of the United States that can Argument against filing. be executed, not an officer that can be appointed or an officer that can be removed. There is no one left to proclaim insurrection, if that shall happen. There is no one left to perform all the duties which for the safety of this people as a nation are reposed in the President. To correct a particular evil, to guard a particular individual or a particular State against the acts of the President, there is no way, according to the gentlemen, but to depose that President by a proceeding like this, and, for the correction of this lesser evil, to produce that enormous evil which affects not merely the State of Mississippi, but every other State of the Union and every individual. Is this the way to treat the head of the government? Take the common case of an ambassador who comes here from another government, who is not the chief of that government, neither a king nor the president of any republic, but who simply comes here to represent a foreign government. Can you sue him? Can you make him liable? Can you bring him within the jurisdiction of this court, or any other court, unless he chooses to come here voluntarily as a plaintiff? Not at all. His person is sacred. Why? Not on account of any natural dignity that pertains to him, but because he represents a sovereign; he is sent here by the chief executive of some other state-it may be a king, it may be a president and as representing that foreign sovereign he is no more liable to suit here than the foreign sovereign himself would be, no matter what mischief he may do. I say he is not only not liable to civil suit, but not to criminal proceedings. If the representative of some foreign sovereign, should in a moment of passion kill some one in this District, some one of our own citizens, absolutely murder him-a thing most improbable indeed-but suppose the case is there a court in the United States that could try that representative for that offence? I am putting the strongest case possible. There is a great mischief, to be sure; the representative has done a great injury; he has taken life; but in that extremest of all cases you cannot correct that great mischief and enormous wrong by com Argument against filing. mitting the greater wrong of making him, the representative of another government, liable here to suit or prosecution. All you can do is to remand him and send him out of the country, and to require his own government to punish him for the offence he has committed. You have no jurisdiction over him. The counsel, then, are altogether wrong in their argument that wherever there is a right there must be a remedy— wherever there is a wrong done there must be a means of righting that wrong. Not so; at any rate not in this case. In support of their right to file this bill, opposite counsel refer to some authorities. They are cases that have been before this court, of proceedings not against the President, but against certain high officers of the government who have been brought in the court or made amenable to the process of the court. First, let me say that there is a clear diversity between those cases and this. The various heads of departments who have been sued here, such as in the case of Mr. Kendall and Mr. Guthrie, and Mr. Madison while he was Secretary of State, are at last but subordinates. They are agents to carry out the executive power, but they are not the depositaries of the executive power. They have functions to perform, and although they are agents, they are public agents, and we must take care to see our way clearly, when we bring them into court for official action or official misconduct, how it should be done, whether at the instance of a private individual or otherwise. The only cases in which the court has maintained jurisdiction over the heads of departments in order to compel them to execute laws are cases of mandamus to compel a Postmaster-General, a Secretary of State, or a Secretary of the Treasury to do something; and the court has always been strict in maintaining that jurisdiction; cautious at every step. That jurisdiction has been exercised again and again, but always with this limitation, that the thing required to be done is a simple ministerial act required to be done by the officer in virtue of some specific law. It is a thing as to which he has no discretion Argument against filing. whatever; in which not the President merely but some law requires him to do some one thing. He is commanded by the legislative department to do some one thing in which a citizen is interested and he refuses to do it. The court have said in such a matter as that, being purely ministerial and directed by law, we will require that officer to do that thing. They have never said as to the President that where he is directed by law to do some single thing, although ministerial in its character merely, involving no discretion or the performance of any particular duty except the duty to obey that particular statute, that a mandamus could go against him, in such a case. The counsel can find no such dictum even. In the case of a mere subordinate officer the court may very well enforce its authority, even to the point of imprisoning him for contempt; because, taking a Secretary from the head of his department, or an Attorney-General from his office, or a Postmaster-General from his department, does not stop the government, does not interfere with any great branch or department of the government. The President is there to make another Attorney-General, or another Postmaster-General, or another Secretary. That does not interfere with the public interests. The government goes on just as well whether one officer is there or another officer is put in his place. But, notwithstanding that, as I have said, this court have exercised that sort of jurisdiction very carefully. I have not, however, found a case like this, a case in which a suit has been entertained by this court against an executive officer as such officer, or an injunction allowed against him, against the performance of his duty as an executive officer. The English courts have set their faces against such suits. Macbeath v. Haldimand,* was an action brought against Haldimand for certain things done by him in his capacity of Governor of Quebec. The case was argued in banc, in 1786, and Lord Mansfield, Mr. Justice Ashurst, Mr. Justice Willes, and Mr. Justice Buller held that he was not personally liable for bills of exchange drawn by him as Governor. * 1 Durnford and East, 172. Argument against filing. The case of Gidley v. Lord Palmerston* establishes the doctrine that on principles of public policy an action will not lie against persons acting in a public character and situation. The view I maintain has been expressed in this court, so far as the President is concerned. In Kendall v. United States, the court say: "The executive power is vested in the President. As far as his power is derived from the Constitution he is beyond the reach of any other department, except in the mode prescribed by the Constitution,-through the impeaching power." There it is. As President, he is beyond the control of any other department, except through the impeaching power. For what is he reached by the impeaching power? The highest crimes and misdemeanors. Therefore, according to this, for the highest crimes and misdemeanors, he is, as President, above the power of any court or any other department of the government. Only in that other chamber can you arraign him for anything done or omitted to be done while he is President. The State of Ohio, ex rel., v. Chase, Governor, is relied on by the other side; but that was a case where the Governor was directed by law to issue a certain proclamation upon the existence of certain facts which were admitted to exist; and it was held that, as the thing to be done did not necessarily appertain to the office of Governor, but was simply a duty imposed by a statute, the court might issue a mandamus to compel the performance of the ministerial act prescribed by statute. So far as this bill seeks to make the President a party, I have said from the first that it was scandalous. I mean, of course, in legal language; that is to say, a suit not fit to be brought, and which no court in the United States can sustain. Therefore it is that as amicus curia, or as law officer next the President, I have felt bound, at the first motion * 3 Broderip and Bingham, 275. † 12 Peters, 610. |