New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-09-14

powers of a court of equity may be prop
| erly invoked. The chancellor is the judge
| Of what preliminary or preventive proceed
| ings may be invoked, and the general rule
| is that any irreparable injury shall be sus-
pended by injunction, the status quo shall
be maintained if necessary till the chan
| cellor shall have time to look into the mat
ter, and generally, where an evil admits Of
no certain remedy prescribed by the law,
the court shall interpose its power in such
! effective manner as may seem best.
| The Chancellor's powers have been de-
| scribed again and again from ancient to
modern times by writers on Jurisprudence.
He is regarded as the keeper of the common
| conscience of the people; and the phrase
| vicegerent of almighty God, which has been
the subject of so many silly sheer, finds
its counterpart in the best authors when
illustrating the power of the Chancellor to
minister to the divine attribute of mercy
and temper the rigid Interpretation of the
| law, if the letter killeth while the spirit
giveth life; and to supply the defects OF
nasty and unconsidered enactments.
But no difficult or violent interpretations
of law have been INDUCED in, nor novel
proceedings supplied in the Louisiana cases.
We have seen and illustrated perhaps sui,
| fciently that the jurisdiction existed and
vested in the Circuit Court of the United
States. 1t did not lie in the State courts
because the constitution of the United
States expressly declares that the judicial
| power Of the United States shall extend to
all cases of law and equity arising under
the constitution and laws of the United
States. Thus the constitution read before
the fifteenth amendment, which further
provided that Congress should enforce 1t
by appropriate legislation. What more ap-
propriate legislation could be devised than
TO commit cases or questions arising under
| it TO the judiciary as was always before the
| case under the other parts OF the cOnstitu-
ton
| 1t is to be presumed as not an open uues-
ton now whether the fifteenth amendment
was wisely adopted or not. Its effect is
that when any number OF cOlOred men, by
reason of race, color or previous condition
are deprived Of their suffrage, it shall be
| enforced, even to the extent Of installing,
| by the power of the United States govern
| ment if necessary, Governor or any other
officer, where deprived of his position by
the denial or abridgment of the right. to
vote SO guaranteed. If it did not have this
effect, and give this jurisdiction over the
| title to State offices, what would the guaf-
| antee be worth!
| TIE POWER AS EXERCISED.
We now come to the analysis of the eter-
| else OF the power of the federal government,
| judicial and executive, as it actually took
| place. And here has been the fruitful
| theme of exaggeration and denunciatioD,
| followed by concessions and admissions, as
| has been limited, which we will endeavor to
! show to have been unwisely and unneces-
| sarily made. The exercise of equity and
chancery powers is generally measured by
| their necessity or fitness to their purpose.
| None were used in the two cases now dis
f,f Laln md AM
cept such as were cOnser vatOry in their ma
ture. The chancellor was informed in the
first place that frauds under the fifteenth
amendment had been committed exceeding
McEnery's pretended majority; that the
evidence of these frauds was largely under
the control of the Governor, who was con-
structlng returning board to suit himself;
that every scrap of paper, return, memo
randum, poll list, or whatever item sent
in from every poll or precinct of the State
was in like control; that they could be
suppre ssed, destroyed or mutilated. That
a bogus returning board could make out
false return to a bogus Secretary Of State,
preventing lawful returning board and
lawful Secretary of State from access to the
documents, or from making any proper re-
turn& The Governor had prematurelv
called a session of the Legislature not vet
returned, and which would be equally
spurious if the plan were carried out, which
was to assemble for the purpose of finishing
the count for Governor and Lieutenant Gov
ernor, and installing them before the United
States court could act or reach the question.
Thus the political contamination would be
reached, the Legislature placed in power,
State officers installed, commissions from
the highest to the lowest issued by the Gov
ernor, and to the Circuit Court of the
United States reserved the barren function
of determining, too late for practical pur-
poses, whether all this was inferentially.
perhaps. right or wrong
If the executive proceedings in question
could be dignitied so far as to have called
this a race between the executive and the
judicial power, and if the powers had been
coordinate and of the same government we
would have the question, perhaps, how far
the Judiciary may be protection against
executive attempts at revolution; and if
they are powerless where is the correction
in republican form of government! When
the Legislature is adjourned, or unreturned
as in this case. who shall supply the needed
restraint if the executive exceed his
powers and attemp: by a comp detat to in
stitute a government not lawfully chosen
and give it control of the situation, SO that
the true result of the election can never be
vindieated except by instruction and war!
But we are not put to the necessity of
solving such difficult questions. Nor need
We .!ocus' GG determine whether the Sire
cult Court of the United states car COM
mand or restrain the Governor of a State in
his executive functions. If State NAV
not deny or ahridge, etc, 10 is very strange
if the judicial power may not re-
strain a Governor from dong what
may tend thereto, or the courts COM
mand what may be necessary to sus
tain the judicial power. But there is no
question that where the statutes have given
him the subordinate, and perhaps uncon-
stitutional functions of member of the |
returning board, he can, in that capacity, |
like all the other members, be restrained |
from unlawful, and commanded to do ueces, |
sary lawful acts.
In the celebrated case of Marburv VS.. |
Madison, the Supreme Court of the United |
States sustained two propositions, impor- |
tant to the present argument: |. That in |
the United States as in Great Britain where |
there is right there is a remedy, and the /
Judiciary are clothed with power to enforce,
by appropriate orders, the rights committed |
to them for protection. 2. Without touch
ing the question whether the executive
power may be directly commanded or en-
joined the judicial, those Immediately I'M
der his appointment and control may-for
instance, his Cabinet officers. ANY other
doctrine would admit of executive usurpa-
ton without remedy.
The orders issued November lG, 1872. in
the case of Kellogg VS.. Warmoth ct al, are
all well known to equity jurisprudence, and
were all necessary to the conservation of
the rights of the voters and candidates in
volved, nay, to the rights of the majority
OF the people of the State to their own
government. They may be analysed as
follows:
l. The Governors new made returning
board was prohibited from revolutionizing
the State. by making a precipitate canvass
and return.
,. They were prohibited from preventing
the regular returning board from perform