The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-10-17

that, in tue result the Kellogg government was
put In possession by force; but the proceeding was
not constitutional recognition or the title or the
Kellogg government, gwen in the only mode ia
which the President can act upon sucn title
namely. when called upon 10 protect state gov
eminent against an insurrection. La his message
the President stated TO Congress that he intended
only TO enforce judicial decree but he ADDED,
that, 'having no opportunity or power to canvass
the votes, and the exigencies OF the case demand
ing an immediate decision,n he conceived 1t to be
his duty, "to recognize those persons as elected
who received and held their credentials to once
rom chat then appeared 10 me 10 Dc, and has
since been decided by the Supreme Court OF the
state 10 be the legal Returning Board" have
italicized portion OF this sentence or the purpose
OF making clear q remark that seems 10 me 10 be
obvious, that so far az the President. IN giving
orders for the enforcement of Judge Dureips IN
functions, entered into or considered the merits
OF those inJunctlons, he acted on question which
he could not Officially CONSIDER or decide except
ing upon an application OF some body Claiming TO
be the Legislature, or the Governor for protection
against u threatened or continued. "domeStic vio-
lenue" But having, for the purpose OF enforcing
Judge Durell's DEGREES, assumed that the Lynch
Board was the lawful Returning Board. the Presl-
dent furtner informed Congress, In his message,
that he should continue to recognize the Kellogg
government unless Congress should o<herwlse
direct.
In reference to this determination three thing
appear to me- to be clear-Frst, that Judge
Dureirs DEGREES were OF no legal force lnasmuch
a federal court cannot possibly have jurlsdlc.
ton TO decide the political question who is the
lawfully elected Governor or Legislature OF
State; second, that the President gave an order
to enforce injunctions that were palpaby illegal
their lace third, That in giving this order the
Presidents recognition OF the Lynch" Board
as the lawful Returning Board was not
constitutional act performed in the only
mode and on the only occasion In and
upon which such question could come be-
fore him. / cannot therefore concur in the opinion
that the President had officially bound himself TO
recognize the Kellogg government at ali future
times, that he was officially bound TO reinstate
Kellogg in September 1874, because he had in
1928 assisted to put Kellogg in possession oil the
ONCE.
1t appears. however, that in May, 1873, Kellogg
made an application to be protectAd in his once
in due form OF law that the President rhereupon
issued his proclamation, recitlng certain grounds
on which he then recognized Kellogg as Cover
nor and commanding all insurgents against his
authority to dispense. Thus relntorced, the Kellogg
government continued to he de Jdcto the govern
ment OF the State until, In the month OF Septem-
Der last the people OF the State, after enduring at
the hands OF this government, as they alleged,
great oppression, or an overwhelming number OF
the people, rose en- uadsse, captured the State
House, expelled Kellogg from the ONCE OF Gov
ernor, compelled the State officers holding under
him to abdicate their functions and installed Nc
Emery as Governor. Kellogg then applied to the
President OF the United States to protect the State
government against this Instruction, and the
President ordered the commanding officer OF the
federal troops in that district to reinstate Kellogg
In once, which was done, the President re-
fusing to examine or consider McEnery's title
to be regarded as the lawful Governor
Having already expressed the opinion that the
action OF the President IN using the military power
OF the United States to bring into existence and
establish the Kellogg government was Illegal and
therefore could not bind his ofncial conscience to
uphold that government, 1t only remains for me 10
consider whether the Recognition which he gave
to it in May, 1873, had 80 bound him that in Sep.
TENDER, 1874 he was obliged TO reinstate 1t with
out fresh in Investigation into and decision upon
It's title. 1t seems to me impossible to regard
| this Kellogg government as at any time purged
OF the original faint OF its unlawful origin for
cannot assent to IL as . sound constitutional
proposition that The federal government or any
department OF 1t may make itself instrumental In
bringing State government into de Jacto exist
ence and into possession OF power, and then that
the President Of the United States by recognizing
1t as the lawful government OF the State,
when applied to to keep 1t In power. binds his
own official conscience or that OF his successors
to give 1t the like recognition thereafter,
totes quotes, In disregard Of clear and conclusive
evidence that 1t has no lawful title whatever.
do not think that any number OF successive recog-
nitions although given by the President upon
"a 10 cnnc off tuffn
free this case from the faint that originally ad.
hered to IT, The constitution in my opinion,
never contemplated q decision by the federal
power, Congress or President, on the validity OF
State government which has been brought into de
Jaco existence BY the unlawful interference OF the
federal pQWer ITSELF The constitution supposes
that State oyernments are created by the people
of the StateAocting freely under their own con-
situations and laws; and when it says that the
Legislature or Governor may have protection
against domestic violence at the hands OF the
United States, 1t cannot in reason be held to
mean that the Executive OF the United
states may FIRST aid by his military
power to put usurper into tne
once OF Governor, and may then recognize him
as the lawful Governor entitled to be main tanned
in the ONCE. To hold that the constitution en-
braces such case would put the government OF
every State In the Union into the control OF the
President who could set up and pull down whom
soever he would. think, therefore, that In May,
1879, and in september, 1874, the President was
bound to know officially. as he knew personally,
that Kellogg became Governor solely be-
cause the Presidents illegal enforcement
OF Judge Durell's illegal orders enabled Kellogg
TO get de Jacto control and possession OF
the government, and consequently thar the
President should on both occasions nave refused
to interfere. The csc that came before the Pres-
dent on both OF thV1e occasions was not the case
OF State government Instituted by the free and
untrammeed action OF the people, and, therefore,
entitled to the guarantee provided by the federal
constitution. II was the case Of pretended state
government put into possession BY the unlawful
enforcement of an unlawful judicial order, and it
was. therefore, a case In which the United states
undertook to guarantee and did guarantee the
continual exlatenca OF its WIN L do