The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-10-17
L OUIS IA N A.
A General Dissertation by George
TicknOr Curtis.
OURELL'S DECREE PALPABly ILLEGAL.
UsIlogg's Government Never COnslitutiOnally
Recognized by the President.
Scathing Rebuke of the Execu-
tive Action.
NEW YORK, Oct. II, 1874.


New YORK. Oct. H. 1s74
JAMES GORDON BENNETT ESQ.,
DEAR Saskatchewan you do not IN asking me
TO express my views or the late proceedings In
reference TO the government OF louisiana repre-
sent any private or personal interest such as the
opinions OF counsel are usually sought for, re-
cognize 1t as a duty sometimes incumbent on the
members OF my profession to form and express
opinions public questions arising out OF public
events. / will, therefore. make careful state
ment OF what understand 10 be public ana well
known facts ano will make such comments on
them as seem TO me TO be sound.
In 1872 there were two factions aiming to con-
troll and possess the government OF Louisiana. A
state election held In the early part OF Novem
Der OF that year, at which Kellogg on the one side
and McEnery the other claimed to have been
elected Governor, and there were TWO rival bodies
claiming TO have been elected as the Legislature.
Under the constitution of the state the returns
OF the election should have been made TO the Sec
rotary OF State, and should have been delivered
py MIN TO the Speaker OF the House Of Representa-
t.ves TO be opened, examined and counted BY the
General Assembly and the result declared. But
by legislation which disregarded this provision
OF the constitution the returns were directed
TO be made TO the Governor, and to be opened and
canvassed IN the presence OF a board designated
by tnat legislation, OF which board the Governor
was TO be member. Under this legislation there
arose TWO conflicting boards, known as the Nv ar
MOTH and the "Lynch" boards, each claiming TO
be the proper board to open and count the votes
and declare the result. The then Governor CIV ar
moth adhered to one OF these boards, before
which he presented and opened the returns that
he had received under the law. Under subsequent
legislation stlll another board arose called the
snp Eprt R0Qr n a
before THIS latter board, which eanyassed them
and declared that McEnery was elected Governor,
and that certain persons named were elected
members OF the Legislature. Prior to this both the
.warmothn and the Lynch" board were enjolned
from acting by State court
On the 10th OF November Kellogg, fearing that
McEnery would be declared Governor through the
action OF Warmoth, exhibited bill In equity in
the circuit Court OF the United States for the Dis
trict OF Louisiana against Warmoth, McEnery and
the ofncial paper OF the State. In this suit
Judge Durell granted an order enj0ininR War
moth from exhibiting or canvassng The votes to
or before any board excepting the Lynch" Board,
and enoining McEnery from acting or claim
ing to act as Governor under any certif.
cate emanating from the "Warmoth" Board.
The order was served by the Marshal on the nth
OF November. 1t was dsregarded, and on the
10th, Kellogg having made affidavit before Judge
fendants were acting in contempt and
defiance OF the Court they were summoned to
show cause why they should not be punished
At this juncture Warmoth, as Governor. approved
The law which brought into existence the abe
Ferietn Board, already mentioned, which law had
not until then received his signature. Having thus
created new Board, Warmotn caused 1t to make
canvass OF the votes for members OF the Legts.
iature, and then as Governor. proclaimed that Ger.
an paan cd Ju1n urouf an
issued an order In the Kellogg suit commanding
the Marshal forthwith TO take possession OF the
State House and to prevent the assembling therein
OF the persons proclaimed by Warmoth to have
been elected members Of the Legislature. The
President OF the United States thereupon
ordered federal troops to support the Mar.
shall in the execution OF this order and
these troops OF the United States took possess
sion OF the State House and held 1t for sew.
eral weeks closing all the entrances but one, al
which sentinels were posted dag aud night, with
fixed bayonets In the meantime the "Lynchn
Board OF canvassers proceeded upon such evidence
as they could OBTAIN, consisting chiefly OF forged
amoavitS, TO make a pretended canvass OF the
votes OF the election and declared Kellogg
to have been elected Governor and that certain
other persons had been elected members OF the
Legislature. After this, and while the federal
troops we're still holding the State House. G. c.
in equity commenced by him before the same
Judge Durell, obtained from that Judge an in
junction order restraining the assembling and
organization OF the Legislature proclaimed by
Warmoth to have been elected, and restrain
Ing all persons from preventing or hinder
ing the organization and assembling or
the Legislature proclaimed by the "Lynchn
Board to have been elected-to wit, the Kellogg
Legislature 1t was in this way that the so-caled
Kellogg government became established In pos
session.
IDe constitution OF the United States article w.,
section L. makes the following provision 1.-THE
United States shall guarantee to every State in
this Union republican form OF government, and
shall protect each OF them against invasion, ana
on Application Of the Legislature, or Of the Erecu.
the 0c'en the Legislature cannot be conuersedJ
against domestic rtolencen
That the trainers OF the constitution intended by
the clause marked in italics to provide power
external to every State py which the government
OF the state can De protected from every form OF
violent overthrow OF its authority arising within
the State itself, whether the insurrection compre-
hends majority or minority OF the inhabitants,
may be assumed to be true. Such q provision
necessarily implies also that the power which is
TO AFFORD the protection must decide what is the
lawful and rigntful government which 1t is to pro-
tect against domestic violence In reference
to the exercise OF this power the following may be
regarded as settled principles OF constitutional
law:-
Ftrst-That the determination OF the question
what government is TO be regarded as the lawful
and rightiul government OF the State, when the
FEDERAL power appealed to TO afOrd its protection
belongs TO the political department OF the FEDERAL
government. NItsaAes
second-That the political department OF the
federal government Is Congress-
tinra.Inat IN providing the means by which
"a Dresf fba tac. .fou ~ na
question what government is the Ia wfu and right
III. government OF State entitled TO be protected.
FOuTm-Ihat congress having by law made 1t
the DUTY OF the President to respond TO such ap-
plcauons ior protection, II rests with the Presl-
dent TO declue what BODY Of men IS the LegIsla-
lure and who is the Governor be ore he eau
perform that duty. -