The New York herald., 1874-10-02
MIR. O'Conor's Opinion ON tho Louisi-
ana Case.

| iHo very hUlo lttt0T OI " Souoi WAicu
we published yesterday is one of those signal
exhibitions of legal acumen which cannot fail
to stir and stimulate professional thought on
disputed question. His argument is too
acute and mastery not to provoke examination
on the purely legal grounds on which he places
it. While awaiting the Judgment of the pro-
fession we venture to indicate some of the
points which the intelligent part of the COM
munity would like to see more fully discussed.
Mr.. O'Conors error-if after full examina-
ton the legal profession should think him in
error-will probably be found to consist in
not strictly pursuing the ingenious and really
illustrative analogy which he suggests in proof
of the Presidents right to reverse his first
decision. The reference to the Supreme
Court, which reversed its own decision in the
legal tender cases, is specious and striking;
but it seems to us that Mr.. O'Conor
has not closely followed his instructive
analogy Undoubtedly a court of justice
may reverse its own adjudications, although,
as Mr.. O'Conor states with Characteristic can
dor, '1t is true that court of last resort will
generally refuse to reconsider question
which it has once directly aGjudicated." But
when such question is reviewed it must be
done in strict conformity to law. In the case
to which Mr.. O'Conor points for illustration
the Supreme Court did not reverse its previous
Judgment in the same suit between the same
parties nor was it legally possible that the same
suit could have been again brought before it.
Mr. OConor's reasoning ignores the distnc-
tion-with which no lawyer is more perfectly
familiar than himsef-between what Mr.
Calhoun, in discussing a similar question,
called the ''subject matter of legal contro-
versy and the 'parties ltigant." With
regard to the subject matter of a suit the
decision of court does not bind its subse-
quent action, but as between the same parties
litigant it cannot reverse its decision. This
is abundantly proved by the history Of the
legal tender adjudications. The first decision
was pronounced in the case of Hepburn
against Griswold, and as between these parties
the judgment of the Court was absolutely final
1t was legally impossible for this contro-
versy ever to come into court again, although
other suits involving the same principle might
and did The first decision was reversed, in
relation to the same principle or ''subject
matter, but not In relation to the controversy
between the same ''parties itigant." 1t was
necessarily brought into court second time
by new parties, and could not otherwise have
obtained q hearing The case of Hepburn
against Griswold had been forever disposed
of. and the new decision arose out of new
cases-those OF Knox against Lee and Parker
against Davis. Mr.. o. Conors analogy, there
fore, fails, because the parties itigant, as we'll
as the subject matter of controversy in this
Louisiana business, were precisely the same
in 1874 as in 1872.
Mr. OConor Ekens the President to an in
ferior court and Congress to court Of final
jurisdiction in the Louisiana controversy.
But he does not accept the logical conse-
quences Of this apt comparison. When an in
ferior court has decided case the proper re-
course Of the defeated party is to the higher
tribunal. 1t would be absurd for him to ex-
pect different decision from the inferior court.
Congress has unquestioned authority to over
rule President Grants decision in the Louisi-
ana case. The President has not obstructed.
but has done oil in his power to forward an ap-
peal to the paramount authority of Congress
Conceding the analogy suggested by Mr.
O'Conor to be pertinent President Grant is
bound by the same rules which apply to o
lower court after rendering decision between
litigant parties. The Court cannot entertain
the same suit between the same parties again,
and if they choose to appeal it can only await
| I'D M Of fha r1t IA frh re- r.
dissatisfied party cannot gain hearing before
the higher court there is nothing for the infe-
rior court to do but to adhere to its decision.
President Grant has twice called the attention
Of Congress to the Louisiana controversy at
two different sessions, and he is justified in
regarding their inaction as at least provis-
ional Endorsement Of his judgment We can
not believe that Mr.. O'Conor would have an
inferior court reverse its decision in a liti-
gated case when the court Of last resort has
repeatedly refused to grant rehearing.
Tho Season.
To be entirely poetic we should announce
to our readers that 'the melancholy days have
Gomez for this is October, and the summer
of 1874 is dead, and we see in the falling
leaves, the shortening days, the keener winds
that come with the rain, the beginning of the
end Of the year. But it is unjust to speak of
these as melancholy days or to infer that they
will be by any means ''the saddest OF the
year" Our amusement columns show that
we are to have our share Of enjoyment. Hero
is the opera, which has come with more than
the usual flourish Of trumpets "Traviata" we
have had, preliminary cordial to enable the
singers to try their voices, and "Aida," re-
membrance of last seasons triumph, and
Faust, which is always popular because it
is noisy, and has marches which please the
r11der taste like the marches in ..Rinhard