The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-07-03
DURELL'S INFAMOUS
ORDER.
What the Congressional In
vestigating Committee
Said About 1t.
The Rock Upon Which the
Usurpation Stands.

~ SuA pNNlOA NOCdlANCs
We make the following excerpt from the re-
port of the judiciary Committee which was
authorized to inquire and report to the House
whether Durell should be impeached for high
crimes and misdemeanors
In relation to Norton's enormous bankrupt
swindles, the committee declared that Judge
Durell must have been cognizant of them, and
therefore a corrupt party thereto, or that he
was grossly negligent in the discharge of his Off
cial duties, so that q,.acufnque uia data, he
comes under a like condemnation" In re-
gard to the midnight Order the Committee
says:
Thus Federal Judge, on an action brought
in United States Court to preserve evidence
of the offer and exclusion of colOred votes at
a State election, in addition to an injunction
restraining the destruction or removal of such
evidence of his own motion, in the night, is
sued an absolute order to prevent the assem-
bling Of State Legislature, when he neither
had jurisdiction Of the subiect-matter Of such
election nor of the persons declared to be
elected, nor of the board by which the declar-
|
these parties brought before the court by bill,
petition, answer, or plea in the cause, and
this, too, when he knew that the marshal
was authorized to use the troops Of the United
States, and that there might be armed collision
arising from the execution OF his order.
1t has been said that in this proceeding
Judge Durell was actuated by desire to pre-
serve the public peace, and by real convic-
ton that the Kellogg ticket had received a
majority of the bona tide votes But were that
so, We do not see that it could alter the case
| before US.
| The Constitution has not committed to the
Federal courts the determination of State
elections. Nothing can be more absolutely
and directly in conflict with the whole scheme
of government which prevails in these States
than for the Federal authorities to assume to
determine the validity and result of State
elections. The subject is wholly without the
jurisdiction of the Federal courts. No cir
cumstances can CONFER nor allegations clothe,
q tribunal with such power, and yet Judge
Durell assumed Of his own motion to assert
such a jurisdiction in an action which did not
even ASSUME to bring the subject before the
court, and by an order against those who were
neither parties to the record, nor had been, or
had any opportunity to be heard.
So far as his action was concerned, it seems
to us that it was absolutely immaterial whether
the Kellogg or the McEnery ticket were elect
ed whether the Witt DEF erriet board was law
full or unlawful, or whether they truly or falsely
counted the vote for State officers. Those
were all questions concerning the State of
Louisiana, and that State alone, to be deter
mined by her tribunals and by her tribunals
alone, and in respect of which neither the
Fifth Circuit, nor any Federal Court nor any
United States judge had any jurisdiction, or
color Of jurisdiction, or Of rightful power Or
authority.
The assumption by judge Of authority
where he has no jurisdiction of the subject
matter or Of the person is a wrong and an
ofense, and is the more SO where he has
neither jurisdiction Of the subject nor Of the
person. This would be so in any country.
But such an offense becomes more fragrant in
a government whose fundamental principle is
a division Of the powers of government be-
tween independent departments. Much has
been said, and Justly said, of the necessity of
preserving the independence of the judiciary.
whatever" says Burke, sis supreme in a
State ought to give security to justice against
its power. 1t ought to make its judicature as
if it were something exterior to the State"
But it is equally, nay, if possible, more
necessary than the exercise of judicial power
should be confined to its proper functions.
r
ment in q State, and to determine it where
there was neither q proper case nor question,
nor parties before it to determine, would be to
make the judges, not the people, those who
choose the rulers and to deliver the govern
ment to their absolute choice and power.
And just as in no system of government is
judicial usurpation SO dangerous as in a re-
publican government, SO in no form Of re-
publican government can such usurpation be
SO dangerous as lin the dual government of
these States when exercised by Federal
Justices.
1t would be monstrous fora State Judge to
issue his fat in case in which he had no
jurisdiction, with a view Of unseating one set
Of officers or legislators, and establishing an
other in the government Of State. But such
an order would be as idle as monstrous, and
would at once be resisted and defed.
But for Federal judge to assume such au-
thority with regard to State would be not
only wrong but dangerous, and the more
wicked because SO dangerous.
The supreme nature Of the power of the |
Federal Government within constitutional
limits, and the authority Of the Federal courts
to decide as to those limits, make the exercise
of this authority by the Federal courts always
grave and delicate. 1t is an authority which |
the supreme Federal tribunal itself has de-
ckred the exceeding gravity and delicacy of
exercising It is a power which, as
against States themselves, has in every
case whatever been distinctly and alb
solutely refused. For a Federal judge
to seek, therefore, to exercise such |
power by indirection, to promulgate an order
where he had neither jurisdiction Of the sub
ject matter nor Of the parties, in pursuance of
which the Federal army and Executive were
set in motion, to take possession of the gov
eminent of State, seems to us to be the
most fragrant oHense and abuse Of power and
authority that a judge could commit; one
which. whether well or i'll intended, was |
the highest degree dangerous to republican
government, and high crime and INSIDE
meanor under the Constitution Of the United
States.
The Senate Committee pronounced this
order, without parallel and expressed its
hope that it would remain SO in judicial pro-
ceedings" They declared ''that Il ,cas impos-
sit1e to conceive more irregular, illegal and in