The New York herald., 1874-10-08
Charles O'C0nOr Criticizes the Ar
gument of Reverdy Johnson.
CAN THE WRONG BE RIGHTED :?
The President Can and Should
Reconsider His Decision"
BRILLIANT LETTER

NEW YORK, oct. 8, 1874
HERALD:-
DEAR SIR-The single point in issue between Mr..
Johnson and myself is whether an executive error,
such as he says the President committed in stining
the legitimate voice OF Louisiana and placing
usurper in the chair OF State, binds the President
himself, and makes him a Of liegeman; so that,
scRlv ntuy, he must thenceforth be ever ready to
come at the call OF the usurper. and, with the
whole executive power OF the Union, crush all
local opposition to him. The illegtimacy OF Kel-
logg's original claim s asserted by Mr.. Johnson,
with the concurrence OF nearly every intelligent
and disnterested person having any knowledge
OF the subject This should be Kept in view, since
much Is always gained in discussion by confnng
the issuSto It's own precise limits. one advantage
here is THAT 1t will enable those learned Jurlsts
who may think that Kellogg was duly elected to
examine and without the excitement OF passion or
partiality, to form an independent opinion
ing Mr.. Johnsons dogma that executive resolutions
in such case are irrevocaole. 1t is unfortunate
IL
are sound If they are unsound it is equally unfor-
tunate for justice and Louisiana, since their prac-
tica triumph is, in her case, pretty certain and it
is further unfortunate for Mr.. Johnson and Gene
raj Grant since If accepted they compel the latter
to persist in an evil course from mistaken sense
OF duty and involve the latter in the responsibility
Of evil counsel tending to great mischief. They
cut OF entirely Louislana's hope OF deliverance
from her woes, since they forbid her oppressor to
relent and make the perpetuauion Of injustice his
absolute duty. This dogma seems to have won
upon Mr.. Johnson since he first ventilated it, for
his second letter reitcrates it in manner that in
dicates affection; and, while he has not seen 1t
either to admit or deny that even Congress could
contrary.
The dogma may be sound, constitu tonal law.
Mr.. Johnson's great and merited fame affords It
weight and, it may be feared, invincible support,
but the arguments offered in its vindication can
have no such effect They certainly weaken its
claims to acceptance.
I. Decisions are cited TO show that when an
executive oticer, under a special authority con-
ferred upon him for precisely defined purpose,
performs q particular act, essentially ministerial
and which, in its own nature, can be performed
but once the courts win not review his proceed
ings should they be cOllaterally questioned in .
suit between ntlgant parties. These decisions are
scarcely relevant And, indeed, 1t would be difl-
cult TO find any that could materially help either
| cin IN hto T1Iara ia alv flo
resemblance between judicial decisions ana exec
utive resolutions. adverted incidentally to the de-
gal tender Judgment, not as an authority LII poin T.
but as u familiar and recent instance to prove
general proposition well known to lawyers-i e..
that al Official determinations, however solemn,
are revocable. 1t is quite true that on claim by
A. b. against Z. d. judgment actually recovered,
II unappealabe or not appealed from in season,
settles the right to the particular sum or thing in
controversy between these two private persons,
so that the defeated defen dant cannot, in general
recover 1t back in another action. Even this is
only the general rule. 1t is not without excep-
tons for If fraud and fssehood be practised In
obtaining an unjust judgment there is q remedy.
,Byers vs.. Surget, 10 Howard's, q. s. r, sos; I;
Bowen VS.. Evans, 2 House OF Lords Cases, 2s1 !;
Michigan VS.. Phoenix Bank, SO N Y. Reports, p. 30)
But the general rule OF the judicial department,
which thus admit, has not the remotest appllca-
tion to the proceedings before General Grant on
the rival claims OF McEnery and Kellogg to the
Governorshp.
Mr.. Johnson says:-'The parties In the con-
troversy brought before the President are the
persons claiming to be the Governor and the peo-
pie OF the state. The Presidents judgment upon
1t, as soon pronounced, binds the Governor, the
people and every one else. = How, then, can the
President by q second judgment, in controversy
between the same parties, presenting precisely
the same questions, reverse his first ruling so as
to affect them or impair any rights vested In either
patty BY virtue q his original action I" 4 submit
with deierence that this notion OF the President
adjudicating as Judge IN this supposed triangular
suit Is o misconception. In his proceedings there
Is no citation, issue or trial. There parties,
in any sense OF the term which is recognized in
jurisprudence nor Is there any Judgment. There
is nothing in the whole affair out executive action,
though it must be admitted tnat such action binds
every one until revoked. Calling it decision, as
we all do. is merely o fashion of speaking or q
compliment to the executive of1lcer; 1t assumed
from courtesy that he examines the facts and de-
libcrates ON the law. Proof that he did neither
would not, however, weaken the legal force OF his
action or Of his decision, If We must call 1t. 1t
is enough that some person or persons claiming to
be the State government who were forcibly re-
sisted sought his interposition. An instanta-
neous 'Judgment'' in their lavor first announced
to the astounded people by the thunder OF federal
artillery against their state capital, would settle
the question and silence all voices that might at.
tempt opposition in any regularly constituted legal
forum, save and except only the Congress OF the
United States No court can give valid judgment
In any case IN that way; the word
Judgment" is, therefore, totally inapplica-
BILE. The Presidents act Is binding on
private persons merely because they have no
power to resist and no judicial remedy; II is bind.
ing In oil judicial and other tribunals merely be.
cause the constitution has not clothed any OF them
with authority to review tho Presidents acts.
So much Tor the imagined analogy between the
acts OF the supreme executive chief Of o nation
and the decisions OF Its judicial department.
The nreaent Ia not a technical inquiry. nor can