In Mississippi v. Johnson,45 decided in 1866, a perpetual injunction was sought to restrain the President from executing the Reconstruction Acts, which were alleged to be unconstitutional. The petition set out that legal secession of a State was impossible, and hence "it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with other States, and that any attempt to do so by secession or otherwise was a nullity," and that Mississippi "now solemnly asserted that her connection with the Federal Government was not in anywise thereby destroyed or impaired," and averred "that the Congress of the States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity." The petition then went on to declare: "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 assert sovereign power over it - and the utter destruction of the State must be the consequence of their execution. They also violate a well-known salutory principle in governments, the observance of which alone can 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 goods, lands, liberty, and life by the breath 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."

43 Burr's Trial, III, 37. Published by Westcott A Co., Washington City, 1807.

44 Burr's Trial. II, 536. Hopkins & Earle, Philadelphia, 1808.

45 4 Wall. 475; 18 L. ed. 437.

President Johnson had vetoed these acts on the ground of their unconstitutionality. It was charged by the bill that nevertheless he was about to execute these acts. In so doing he would necessarily be performing a purely ministerial act, since, it being known that he personally denied their constitutionality, it followed that in executing them he was simply obeying, without opportunity for discretion, the commands of Congress.

In support of the bill it was argued that the judicial power is extended by the Constitution to all cases in law and equity arising under the Constitution, that the President was a creation of the Constitution, and an agent for its enforcement.

In opposition to the bill it was argued that this was a suit against the President officially. "There is," it was asserted, "no allegation that the President is about to do anything of his own motion which as President he is not authorized to do. The allegation is that he is about to execute certain laws passed by Congress."

"It is not upon any peculiar immunity," said counsel, "that the individual has, who happens to be President, upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as in the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court, or the jurisdiction of any court, to bring him to account as President. There is only one court, or quasi-court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal, but one that sits in another chamber of this Capitol. There he can be called and tried and punished, but not here while he is President, and after he has been dealt with in that chamber and stripped of the robes of office, and he no longer stands as the representative of the government, then, for any wrong he has done to any individual, for murder or any crime of any sort which he has committed as President, then and not till then can he be subjected to the jurisdiction of the courts. Then it is the individual they deal with, not the representative of the people."

The court, in a very brief opinion, refused to issue the writ, saying:

"The single point which requires consideration is this: can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional ?

"It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms 'ministerial' and 'executive,' which are by no means equivalent in import"

After pointing out that the duties sought to be enjoined were executive and political, the court declare that "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 has been suggested," the court continued, "that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson, is relief against its execution by the President. A bill praying an injunction against the execution of an Act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State. The motion for leave to file the bill is, therefore, denied."