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

1
and manufactured list to organize Legis
| lature of their own. to count in a Governor
| and Lieutenant Governor to suit them
| selves, Just because Legislature, once re
| turned, can, on its assembly, proceed te
| Judge of the right to sit of each and every
| member, without interference OF the federal
| judiciary!
There is broad distinction here. and the
| protection secured in every case Of law and
equity could not be withheld from the
| 10000 voters. The permitting Of the
| reading of false and illegal list to or
| ganize upon was no denial Of the constitu
tlonal rights of each house, once called to
| order.
| The fifteenth amendment would have
| authorized Congress not to have made these
| exceptions in favor Of State Legislatures
and once made. they should not be over
| construed to allow an illegal primary or
| ganizatiOn intend to affect the returns
! for Governor and Lieutenant Governor, to
paralyze the federal judicial power to secure
the persons properly elected and returned
| to those offices.
This has been the most difficult and, of
| course, the least understood point in the
| Louisiana case. No candid lawyer can give
| it due consideration and say that there was
not a careful regard tor the restrictions and
| limitations of the laws Of Congress, with a
| strict determination not to be batfied in the
| exercise of the equitable powers solemnly
| committed to the judiciary, and sacredly
| due to every freedman, however humble
| and friendless, throughout the land.
| THE ORDER IN CHAMBERS.
| If the United States Circuit Court has
jurisdiction of all suits at law and in equity.
arising under the acts to enforce the If
| teenth amendment, and of all rights to
| office arising hereunder, including the title
| to the offices themselves, 1t certainly has
| the lesser and accessory jurisdiction of
! cases for the preservation OF testimony, for
proven ton of irreparable damage, and
| against precpitate and illegal schemes, to
| thwart the action OF the legitimate author
! tiles, havin. she effect Of finality and
| tending to premature inveAiture in the
| Offices in question. Such investiture we
| have shown, may be final disposal OF the
| title, removing the question, perhaps. from
! the judicial arena and making it political.
| Such a result would defeat the court of its
| jurisdiction. 1T is no answer to this to say
| that this final political advantage was the
| result Of che restraining orders of the court
| in favor of one party, while similar effect
| would have been had in favor of the other
| party had the executive scheme succeeded.
| The question which should have this advan-
| tage was az much judicial one as which
had been chosen 20 the Offices; in fact it
| may be the only judicial question of which
| the case was susceptible, and the only one
| the decision of which could be relief TO
/ the 10000 denied their suffrage. 1t was
evident the Governor Of the State thought
| so from his maneuvres to create situation
taking Che atfaif out Of the bands OF the
federal COURTS
Having mprovised a returning board. as
has been shown, he proclaimed the sudden
result OF their labors Decem Der 4, 1872; and,
had his proclamation had any effect, the
power vested in the Circuit Court by Con-
gress would have been indeed nullitied.
The State House contained all the poll lists,
memoranda, returns of the election, etc. still
withheld in defiance of the orders OF court
and they and the State House itself were III
danger Of seizure, perhaps destruction, or
of illegal occupation to install the McEnery
government. What is the benefit OF equity
Jurisprudence to secure the rights of the dis
nchised II il must silently stand by and
submit to such contempt and disobedience
In no case involving civil or property rights
would chancellor ever suffer such a re-
suit; had LIE failed 10 vindicate his power
upon such q showing, he would have been
impeachable for imbecility and neglect of
duty. As little could he submit to such an
invasion of his jurisdiction where the polit-
zeal rights Of 10000 men were concerned.
He issued an order 70 the United States
marshal, December .. 1872, ordering him
10 take charge Of the State House. which
was the place Uf custody of all the election
archives. prevent all illegal assemblages
therein by virtue OF pretended canvasses
aud returns made III violation of the orders
0S the c0uIt; bht, mark the care not TO eX-
coed the bounds of judicial power. direct
ing free ingress and egress TO and from the
public offices in the building to all persons
entitled to she sames
And This order, So abundantly Justified.
so necessary 10 preserve from contempt
the authority OF the court and secure any
benefit from its proceedings to the litigants
involved. has been more than all others the
subject OF Misrepresentation and denuncia-
ton. It was iuade under circumstances
amounting 70 q certainty that the State
House would otherwise be occupied by po
lice, State militia and a rabble mob such as
had sacked it in 1866. If there was any
wrong in that order it must have been in
the comforting of equity powers by Con
gress, and the consequent duty OF using
them when necessary, or in the passage of
the fifteenth amendment itself.
The cutlery Of madness against j. Is be.
cause i: was effective. and it Is scarcely d
matte. for further argument that j. was
necessary. 4 court must use weapons sutfi-
cient to the end to be secured. Had it used
less the people of Louisiana would today
a
usurpation.
The physician must use remedies that
shall reach and remove the danger. Shall we
find fault with the keen bistoury because it
has reached and punctured the corrupt
part, 1.-THE seat OF ehe diseased
Again, it is objected that the marshal
made reauisition for q few United States
reference with him in the execution of
process. This is the most tiimsy part of the
objections and criticisms that have been
made. j: Is q wise provision, such as has
been inserted in several parts of the rev.
enue. the civil rights and reconstruction
laws. Troops have been used te break ND
distilleries, 20 make arrests, ETC., and their
use has ottens perhaps, prevented blood
shed. It has certainly taff1ed disposition
to lawiessnes. 1t IL is wrong the law is to
be blamed. ont can it be supposed either
wrong % unnecessary ID the present in
stance.
COSCIUs:oS.s
II. during the inter1egnum OF adjourn
ment of the legislative power, congressional
or State, we can not look to the judiciary
for remedy against executive usurpation,
we must look to civil war; for there would |
be no other remedy. By this it is not in
sisted that the judicial shall invade or
usurp the executive power in any political |
system, coordinate or otherwise. The Judi |
ciary simply attacks the result of the illegal |
acts OF tie executive by restraining their |
effect. And IN the case of such action by |
such an authority as Circuit Court of the |
United States, there is an ample guarantee |
against wrong in the supervisory and APP |
pellate power ct the Supreme Court Of the |
United States.
The simple conclusion attempted to be
arrived az is that in the Louisiana case, as |
it is generally called. there is no ground for |
the interference of Congress; none what |
ever, for the exercise of the disputable |
power of calling another election by Con |
i Il