The morning star and Catholic messenger. [volume] (New Orleans [La.]) 1868-1881, 1874-10-11
THE OPINION OF MR., cHAs, o'coNoR,
Considering the Executive Error in 1872
THE PRESIDENT CAN REMEDY HIS MISTAKE
NEW York, Sept. &c, 1874.

which prevails on the question of Kellogg g
claim to the office of Governor, "a that
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
fuential 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, ut this time. is as follows:
Was the original error of the President
in recognizing Kellogg as Governor con-
elusive Judgment, which, subject only to u
review Ivy Congress, was absolutely bind
ing upon al, persons, including the Presi-
dent himself, and also irrevocable by him
even, though he should have subsequently,
discovered his mistaken
It 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
prepared the opinion with which, in Your
columns, you have favored the public. If
any die rences shall be observed between
his views and mine / am persuaded they
are such as joint conference and consulta-
ton would have obviated.
On an exigency of this kind the whole
authority of the Federal government, in
any of it's departments, or in all of them
combined, ia derived from the constitu-
tionai power and duty "to protect each of
States against invasion and, on application
of the Legislature OF Executive (when the
Legislature cannot be oDvened), 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 q State
government from domestic violence" is
conferred or arises except when such gov
eminent, by it's legislative body or it's 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 fnnda-
mental law in these particulars is very in
structive. 1t was only in cases of imperi-
GUS necessity, and then under the most
cautions limitations, that the 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 expedient to
leave the remedial process in the hands of
the State itself. In such 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 he lawful, even in the
elected Executive, through corruption,
pusillanimity or otherwise. declined to
solicit aid in support of his pretensions. 1t
scarcely requires 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 dc fdcto State
governments, is not judicial but political |
When one Of these appeals to the Federal
government for protection against the |
" domestic violence" of the other, Con-
gress, or in its default the President, must |
of con~aa determine the question, and the
State government recognized by this deter
mination must be protected accordingly |
against Its rival by the Federal Executive. |
Be 1t in reason, Justice and truth ever 40 |
erroneous, such a decision must, ne-erthe-
less, be regarded valid 80 long as it remains |
in force. And it is binding on all persous
and in all conrts and places. Against the |
moral or political wrong, If there be one,
there Is no remedy but revolution and with
revolutions judicial science has little or no
concern.
All this 1 think must be conceded By
every sound lawyer, aud from these premt-
SEES 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 1t
and to reinstate Kellogg by the military
forces of the Union as often as he INDY be
In my opinion the premises do
not warrant the conclusion thus drawn
rom them.
A decision by competent official authority
binds, it is true, without reference to the
question of its Justice or propriety; but
Ibis rule obtains only so long as the de
,ieion remains in force and the cases are
rare indeed, if there be any, in which de-
,isiop, by any tribunal or official authority,
9 absolutely iIreveIsible. Courts of the {
highest authority, or, as it is sometimes ex- {
pressed, courts in the last resort, occasion
lily recall their own judgments and hold !
or naught their own previous solemn I
ldjudications This was lately done by the :
Supreme Court of the United States in the '
amiliar controversy concerning the consti- {
of the legal tender acts. 1t is 9
rue that a court of last resort will gener- l
lily refuse to reconsider question which 4
{ has once directly adjudicated. But no G
is better established than that {
= A. u g al