The New York herald., 1874-09-30
The Opinion Of Mr.. Charles
O'Conor.
Considering the Executive
Error in 1872.
The President Can Remedy His
Mistake.
NEW YORK, Sept. 26, 1874.

NEW iOhh, ScPt 20, lcIfs
To THE EDITOR OF THE HERALD
The impressive unanlmity OF sentiment which
prevails on the question of Keogg's claim to the
ONCE OF Governor as that claim stood originally
and prior to any action by the President, renders
it quite needless 10 express any opinion on that
subject. Leaving out of view, for the moment,
President Grants acts. the Judgment Of the press
and OF nearly all deservedly influential persons, In
or out OF ofhce seems TO be that Kellogg was not
duly elected.
Assuming this judgment to be correct, the main
not the only practical point for consideration, at
this time, is as follows:-
Was the original error OF the President in recog-
nizng Kellogg as Governor q conclusive Judgment,
which, subject only to review oy Congress. was
absolutely binding upon all persons, including the
President himself, and also irrevocable by him
even, though he should have subsequently dis
covered his mistaken
1t cannot be confidently afnrmed that this point
had ever been thus distinctly and sharply pre-.
sented to the mind OF that emnenty learned and
experienced jurlst and statesman. Reverdy john
son, before he prepared the opinion with which,
in your columns, you have favored the public. If
any difference shall be observed between his
views and mine am persuaded they are such az
Joint conference and consultation would have
obviated.
On an exigency OF this kind the whole authority
or the federal government in any of It's DEPART
ments, or in all Of them combined, is derived from
the constitutional power and duty "to protect
each OF the states against invasion and,
application Of the Legislature OF the Executive
when the Legislature cannot be convened),
against domestic Violence 1t will be seen that
while the duty to protect from invasion ab extra
is absolute and unconditional. neither the power
nor the duty to protect a State government from
domestic violence" is conferred or arises except
when such government, by It's legislative body or
its Executive. soiicits federal aid And it should
further be observed that 1t Is only when the leg
slative body Is not in session and cannot be con-
vened that the State Executive is authorized to
invoke Intervention. The strictness and pre-
cison OF the fundamental law in these partc-
uars is very instructive. 1t was only in cases OF
imperous necessity, and then under the most
cautious limitations, that the fathers consented
to allow federal interference with State elections.
However lagrant the disorders and violations of
law and justice, in the canvass or otherwise. by
which a duly and fairly elected State officer
might be set aside and an usurper permitted to-
occupy his seat 1t was deemed most expedient to
leave the remedial process In the hands OF the
State itself. In such a case, II the State LegiS-
lature chooses to acquiesce the federal authority
cannot interfere while 1T is in session or can
be convened, nor would such interference be
lawful, In the recess Of the Legislature. If
the lawfully elected Executive, through corrup-
ton, pusanImity or otherwise. declined to solicit
aid in support of his pretensions. 1t scarcely re-
quires reference to the sound and clearly iustra
tive opinion in Luther " Borden. 7 Howard's q. S.
Reports, TO prove that the power of determining
which is Legitimate o! two existing de fncfO State
governments, is not judlcial but political. When
one OF these appeals to the federal government for
protection against the domestic vlOlence' OF the
other, Congress, or IN its default the President,
must OF course determine the question, and the
State government recognized by this determlna.
ton must be protected accordingly against its
rival by the federal Executive. BE it in reason,
justice and truth ever so erroneous, such decis-
ion must, nevertheless, be regarded valid so long
as it remains in force. Ana it is binding on all
persons and in all courts and places. Against the
moral or political wrong, If there be one, there is
no remedy but revolution and with revolutions
jurdical science has little or no concern.
All this think must be conceded by every sound
lawyer, and from these premises some persons
who believe that Kellogg was not duly elected
still maintain that the Presidents original error
In recognizing him Is OF such potency, In law or
policy that the President is bound to persist In 10
and to reinstate Kellogg by the military forces OF
the Union as often as he may be displaced in my
opinion tHt PROMISES uO uOt Tue CuHctu-
sion thus drawn from them.
decision by competent official authority binds,
1t is true without reference the question lis
justice or propriety but this rule obtains only SO
long as the decision remains in force; and the
cases are rare indeed, II there be any, in which a
decision by any tribunal or ofllca authority, is
absolutely irreversible. Courts OF the highest
authority, Or as 1t is sometimes expressed, courts
in the last resort occasionally recall their own
judgments and hold for naught their own
previous solemn adjudications. This was lateiy
done oy the Supreme Court of the United States
in the familiar controversy concerning the con.
stitutonality of the legal tender acts. 1t Is true
that court OF last resort will generally refuse to
reconsider a question which it has once directly
adJudicated. But no proposition is better estab-
lshed than tnat 1t is the duty OF every such
TO recall any decision OF its own which 1t has be-
come convinced was erroneous.
In this Louisiana case the paramount authority
was Congress. A recognition of the Kellogg gov.
ernment by that body would have bound the
President and all others until Congress should
itself have again acted on the subject and revoked
its former conclusion. Congress not having acted
IN this case President Grants recognition had
similar effect and bound all parties but Con-
gress might have revoked its determination so
might President Grant have recousidered his
opinion, and when called upon second time
by Kellogg he might have refused his
aid. And unless, when such second application
was made, General Grant still labored under his
original and erroneous opinion that Kellogg was
duly elected he ought to have SO refused. Kellogg,
to be sure, ousted by force from state offces
into which he had been inducted by the President,
in the exercise OF q constitutional power; and the
employment of that force was a breach Of peace.
But ~ the peace OF the good people OF Louisl-
ana tina. was broken. No law OF the Union was
infringed or coutemned The extreme violence
which accompanied Penns revolutionary move
ment may have been an evil example. one OF the
most ancient and valuable laws which the wisdom
OF their English ancestors transmitted to the
American coionists is that which forbids the law
ful owner OF lands TO oust ''wth strong nand
multitude OF people" the trespasser who, BY long
possession or otherwise, has clothed hilnsef
with color OF right This was pre-