The morning star and Catholic messenger. [volume] (New Orleans [La.]) 1868-1881, 1874-10-11
LoUIsIANA's DILEMMA.
THE OPINION OF MR.. cHAs. o'coNoR
Considering the Executive Error in 1872.
n E Ia w
NEW YORK. Sept. &c. 1874.


The impressive unanimity of sentimen
which prevails on the question of Kellogg
claim to the Office of Governor, as tina
claim stood originally and prior to any
action by the President, renders it quite
needless TO express any opinion on that
subject. Leaving out of view, for the mo
ment, President Grants acts, the judgment
of the press and of nearly all deservedly in,
fiuential persons, in or out of office, seems
TO be that Kellogg was not duly elected.
Assuming the Judgment to be correct
the main if not the only practical point for
consideration, Mt this time, is as follows:
Was the original error of the President
in recognizing Kellogg as Governor con-
elusive judgment, which, subject only to q
review hy Congress, WAS absolutely bind
ing npon all persons, including the Presi-
dent himself, and also irrevocabe by him
even, thaugh he should have subsequently
discovered his mistaken
1t cannot be confidently affirmed that
this point had ever been thus distinctly and
sharply presented to the mind of that
eminently learned and experienced jurist
and stat. man, Reverdy johnson, before be
columns, you have favored the public. If
any difit rences shall be observed between
his views and mine 1 am persuaded they
are such as joint conference and consulta-
ton would have obviated.
On an exigency of this kind the whole
u,
any of its departments, or in all of them
combined, is derived from the constitu-
tional power and duty "to protect each of
States against invasion and, on application
of the Legislature or Executive (when the
Legislature cannot be conveped). arainst
domestic violence" It 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 State
government from "domestic violence" is
conferred or arises except when such gov
eminent, by it's legislative BODY o. its Ex
ecutive, solicits Federal aid. And it should
further be observed that it is only when
the legislative body is not in session and
cannot be convened that the State Execu-
tive is authorized to invoke intervention,
The strictness and precision of the funda-
mental law in these particulars is very in
structive. It was only in cases of imperi
GUS necessity, and then under the most
cautious limitations, that tho fathers con-
sented to allow Federal interference with
State elections. However fragrant the dis.
orders 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, It was deemed most expediept to
leave the remedial process in the hands of
the State itself. In such q case, if the |
state Legislature chooses to acquiesce, the |
Federal authority cannot interfere while it |
is in session or can be convened, nor would |
such interference be lawful, even in the
recess of tho Legislature, if the lawfully |
elected Executive, through corruption.
pusilianimity or otherwise. declined to
scarcely requires n reference to the sound
and clearly illustrative opinion in Luther
VS.. Borden, Towards u. S. Reports. to
prove that the power of determining which
is legitimate of two existing de tacto State
governments, is not judicial but political.
When nj fhncn to n !
government for protection against the ,
" domestic violence" of the other, Con.
gress, or in it's default the President, must 1
OF come" determine the question, and the {
State government recognized by this deter
must be protected accordingly !
against it's rival by the Federal Executive. s
Be it in reason Justice and truth ever SO !
erroneous, such decision must, ne-erthe. I
ess, be regarded valid so long as it remains {
n force. And it is binding on all persons {
mo IN all conrts and places. Against the 3
moral or political wrong, if there be one, 7
here is no remedy but revolution and with c
evoutions judicial science has little or no n
oncern. a
All this 1 think must DO conceded by b
very sound lawyer, aud from these premi- u
vas not duly elected still maintain that the c.
residents original error in recognizing o
i'm is of such potency, in law or policy, u
hat the President is bound to persist in it c,
no 20 relnstate kellogg by the military is
.rces OF the Union as often as he may be tt
isplaced. In my opinion the premises do 81
OF warrant the conclusion thus drawn
ON them. oil
A decision by competent official authority
nds, 1t Is true, without reference to the
lestion of it's Justice or propriety but
is rule-obtains only so long as the de
zion remains in force and the cases are
re- indeed, if there be any, in which de- p,
sion, by any tribunal or official authority, in
absolutely iTreversible. Courts of the ca
CHEST authority, or, as it is sometimes ex- &C
essed, courts in the last resort, occasion Be
y recall their own Judgments and hold w;
r naught their own previous solemn FRI
publications.. This was lately done by the We
preme Court of the United States in the wi
niliar controversy concerning the consti- tht
of the legal tender acts. It is an
lie that court of last resort will gener- lar
y refuse to reconsider n question which mi
has once directly adjudicated. But no eig
position is better established than that Ca
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