The New York herald., 1874-10-19
Mr.. Curtis In Reply.

| uAI. 0cciSo 4lCAuOI AUTtIb, III WhiSA A1e
speaks of our criticism as an argument dd
hominem. We think our quotations from Mr..
Webster were very different in logical force
from a mere personal hit. If Mr.. Webster
had no other weight in this controversy than
| is derived from the admiration of his prin-
cipal biographer Mr.. Curtis might have said
with truth that we had resorted to the argu-
mentum ad hominem. But Mr.. Webster is too
resplendent legal luminary to shine with
borrowed light No jurist, dead or living,
who has written on this question can be
thought to rank as his superior We might
have quoted him with as much logical force,
though not with quite the personal pertinence.
against Mr.. O'Conor as against Mr.. Curtis.
Mr.. Webster's opinions on this difficult sub
ject derive peculiar weight from the fact that
they were formed under sense of official and
professional responsibility as the chief
adviser of President Tyler during the Rhode
Island troubles, and afterward as counsel in the
celebrated case before the Supreme Court.
1t became his duty to probe this question to
the bottom, and the opinion of the pro-
foundest constitutional lawyer of the last
generation has value quite Independent Of
the Endorsement of any admirer.
In Curtis 'Life of Daniel Webster" (vol.
H., PIP. 1860 we find letter written by Mr..
Webster, in the height of the Dorr contro-
versy, from which we take this statement
'The government of the United States
pledges itself to maintain the existing consti-
tuition and laws till regularly changed" This
is an admirable specimen OF Mr.. Webster's
clear perception and apt language. 1t pene-
trates to the very pith of the controversy.
The de .facto government of State is to be
supported by the President ''till regularly
changed" There are several ways by which
the existing government Of Louisiana might
be regularly changed, but its displacement
them. One method Of deposing State officers
destitute of valid title is by writ Of quo
,oarranto or other suitable proceeding in the
State courts. When q hearing has been had,
and the Court issues its decree, force may
then be employed if the spurious officers
resist. But Penn could not pretend
in the recent affair at New Orleans that his
followers were acting as posse comitatus to
enforce judicial decree. They we're engaged
in mere act of unauthorized violence. An
other regular method of displacing an illegal
de facto government is through the subse-
quent elections. This method requires
patience and delay, but it is thoroughly effec-
tive if fair elections are permitted. Yet as
usurpers in possession might repeat their
usurpation and render their power per-
petual, the federal constitution has provided
third method of dispossessing an illegal State
government by giving Congress power to
decide whether o State government is re-
publican, and to replace it if it is not This
is the only remaining way of making q
Irregular change in the existing Louisiana
government unless the people prefer to en-
dure Kellogg until they can put him out by q
new election.
Mr.. Curtis asks if it would have been the
duty Of President Tyler to uphold Dorr if
Dorr had got illegal possession Of the govern
ment of Rhode Island. That would depend
on circumstances. If Dorr had re-
mained in power, as Kellogg has, for
ACdIAy VWO yCdlo, ~ Cucrc udu D6cu
meanwhile no other actual government in the
State; if illegal violence had been stirred up
against him, as was done against Kellogg we
have no doubt that it would have been the
duty of the President, on proper application,
to maintain the existing government till reg
ularly changed" and to forbear giving his
official sanction to so dangerous precedent
as that mob violence is an appropriate pro-
ceeding against officers illegally in power
The duty of the President is defined in the
federal statute. He is to employ force to sup
press an insurrection in State against the
government thereof" the law does not say
against the legal government thereof"
or against the righttul government
thereof" but nakedly against the gov
ernment of the State; and from this
language Mr.. Webster argued that the exist
ing or de facto government is always the one
to be protected by the President 'till regu-
larly changed" The President has no power
except that with which Congress has expressly
clothed him, which is limited to cases of do
mestic violence against the actual government
Of State. If the government thus protected,
owing to illegality, usurpation or any other
cause, is not republican, that is a ques-
ton which Congress has reserved to itself
for its own decision, and has never delegated
to the President. 1t was necessary to clothe
him with the other to meet sudden emereen-
cies requiring prompt action, but his duty is
confined to maintaining the existing govern
ment for the time being. He must leave Con-
gress to judge Of the necessity of other inter-
ference. Chief Justice Taney said in the
Dorr case: -"It rests with Congress to decide
what government is the established one in a
State for, as the United States guarantees to
each State republican government, Congress
must necessarily decide what government is
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