The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1874-10-20

only to enforce judicial decree; but ne
added that, shaving no opportunity OF power
tn canvass the votes, and the exigencles o.
the case demanding an immediate decision,
he conceived it to be his duty :" to reco9naSe
those persons as elected who received aho
held their credentials TO office from aohdt We1
oppeared TO me 10 be, and has slnce peen ue'
cided by the Supreme Court OF the state te
| be. the leaai returning board" nave
italicized portion Of this sentence 1or lhs
nurnose of making clear remark that seems
to mo 70 he obvious, that so far as the fresi
dent in giving orders for the enforcement O
Judye DurelPs irjunctions entered INTO OF
oonsidered the merits OF those Injunction:
he ac.ed ON question which he could mol
ofy;ci,Ily-eonsider or decide excepting upon
an annlicatiou of somebody claiming to be
tho legislature, or the Governor, for protec
lion against threatened or continued "do'
mes,ic violence" But having, for the pur
nose of enforcing Judge DnrelFs DEGREES
= 's,,mrd thar the "Lynch" board was the
lawful returning board, the President fur
Their informed Congress, in his message, that
he should continue to recognize the Kellogg
Government unless Congress Should other
wise direct.
In reference 10 GUis uelei ui'uaLIoh tuice
things appear to me to be clear: First, that
,Judge DureIps DEGREES were of no legal
fo,ce. ina,much as a Federal court cannot
20. sibly have jurisdiction to decide the poll.
teal question who is the laWfully-eiected
Governor or Legislature of State second,
that the President gave an order to enforce
iniunctions that were palpably illegal on
their face; third, that in giving this order the
Presidents recognition of the "Lynch
board as the lawful returning board was
not a constitutional act performed in the only
mode and on the only occasion in and upon
which such question could come before
him. I capnot therefore concur in the
opipion that the President had officially
bound himself to recognize the kellogg go.
yernment at all future times, or that he was
officially bound to reiustate Kellogg in Sep
tcmber, 1874, because he had in 1928 as
sisted 10 put Kellogg in possession Of the
Office.
1t appears, however, that in May, 1878,
Kellogg mide an application to be protected
in his office in due form Of law; that the
President thereupon issued proclamation,
rcciting certain grounds on which he then
recognized Kellogg as Governor, and COM
handing all insurgents against bis authority
Ia disperse. Thus reinforced, the Kellogg
government continued to be de tdcto the
government of the State until, in the month
OF September last, the people OF the State,
after enduring at the hands OF this govern.
ment, as they alleged, a great oppression, or
an overwhelming number of the people, rose
en- 7nasse, captured the State-house, expelled
Kellogg from the office Of Governor, compell-
ed the State officers holding under him TO
abdicate their functions, and Installed Nc
Emery US Governor. Kellogg then applied
TO the President Of the United States to pro.
tect the State government against this insur-
rcction, and the President ordered the com.
manding officer of the Federal troops in that
district TO rtinstate Kellogg in office, which
was done, the President refusing TO examine
or consider McEnery's title to be regarded
as toe lawful Governor. Having already en-
pressed 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 lille.
gal, and therefore could not bind his official
to uphold that government, 1t
onty rem lins for me to consider whether the
which be gave to it in May, 1873,
had so bound him that in September, 1874,
he was obliged TO relnState 1t With
out fresh investigation into and decision
upon its title. 1t seems TO me impossible TO
regard this Kellogg government as at any
time puroed Of the original faint of ITS I'M
lawful origin for cannot assent to it as
sound constitutional proposition that the
Federal Government or any department OF
it may make itself instrumental in brInglnSa
State government into de tacto existence ard
into possession Of power, and then that the
President of the United States, by recoGnIz-
ing il as the lawful government OF the State,
when applied to to keep it in power, binds
his own official conscience or that of his sue
cessors to give it the like recognition there
after, totes quotieS, in disregard of clear and
conclusive evidence that iC has no Law.
fui title whatever. l do not think
that any number of successive recog-
nitions, although given by the President
upon formal applications under the Constr.
tuition, could free this case from the faint
that originally adhered to It. The Constilu
ton, in my opinion, never contemplated
decision by the Federal power, Congress or
President. on the validity of State govern
mcut which has been brought into de Jacto
existence by the unlawful interference of the
Federal power itself. The Constitution sup
poses that State governments are created ny
the people of the States, acting freely under
their own constitution and laws; and when
it SAYS that the Legislature or Governor may
have protection against domestic violence at
the hands Of the United States it cannot IN
reason be held to mean that the Executive OF
the United States may first aid by his mill
tary power to put usurper into the
office of Governor, and may then recognize
him as the lawful Governor, entitled to be
maintained in the office. TO hold that the
Constitution embraces 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 whomso.
ever he would. / think, therefore, that in
May, 1878, and in September, 1874, the Pre-
sident was bound to know officially, as he
knew personally, that Kellogg became Gov
ernor solely because the Presidents illegal
enforcement of Judge DurelPs illegal
orders enabled Kellogg to get a de
focto control and possession of the
government, and consequently that the
President should on both occasions have re-
fused to interfere. The case that came before
the President Oh both OF these occasions was
not the case of State government instituted
By the free and untrammelled action of the
people, and therefore entitled to the guaran-
tee provided by the Federal Constitution.
1t was the case of pretended State govern
ment 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 continued existence OF its
own creature / do not believe that such
was the meaning or can be the effect Of the
Constitution.
Perhaps it may be asked whether the Pre-
sident should have left the State of Louisiana
how u bo,,