The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-03-20

void, must also hold that neither the kel-
!ogg government nor the McEnery govern
ment can be recognized as government lie
pre-, and this, | think. ought to dispose of
the question OF Pinchback's rights under an
election resting upon the validity of that
government. l deny the right of any one to
claim admission here on the ground merely
Of de tacto State government which is found
to be without legal authority The effect of
the judicial decisions of that State upon the
question Of the he jare character Of that gov
eminent will be considered when we come to
consider the nature and origin of that gov
eminent. But before proceeding to consider
the de tUct0 character of the State gov
ernment, since all the evidence is be-
fore US bearing upon the question of
Pinchback's right, which the majority of the
committee believed showed that there was no
legal government, and the majority of the
Senate may draw the same conclusion, what
becomes Of the prima tacie case resting upon
the presumption arising from the certificates
Is not the evidence now to be considered
upon the merits. For illustration, take the
strong presumption in favor of innocence in
criminal case. After evidence has been in
troduced tending strongly to prove guilt, and
from which the jury might properly find a
verdict of guilty, what would be thought OF
the Judge who should hold aud instruct the
Jury that, no matter how strong the evidence
or whatever it might be, they must disregard
it because the law presumes innocence, and
they must act upon that presumption alone
and acquit.
| now come to the question whether kel-
logg and his Legislature constituted de factO
government, which by any recognition 1t has
received has so far grown into legal or
legitimate government that its acts in electlng
Mr.. Pinchback have become binding upon US
SO as to require or properly authorize US to
admit him to a seat here. Had Kellogg and
his Legislature already been in the possession
of power and the actual exercise of the offices
they claimed, and in the actual government
of the State without any act OF the Federal
Executive to place them IN that position, then
whether this or the McEnery government was
actually entitled by the election which had
taken place | can readily understand that the
President might, and that it might be his
duty to recognize the government thus In the
actual exercise OF power as a de tdrto govern
ment until the question of right could be
properly decided, or until a proper election
could be had, and that such a recognition, so
far at least as the Executive Of that govern
ment was concerned, might very properly be
followed by, whether binding or not upon,
both branches of Congress. [ concede also
that at the time of the Senatorial election the
Kellogg government (the Governor and Leg
islature) constituted in one sense de tdcto
government that it was in the actual posses
sion and exercise the governmental powers
over that State.
The Kellogg Government Established by Fed
eraI Interference.
But how did it obtain the possession of this
power, and who gave it this lie facto character?
1t did not obtain possession OF the govern
ment for itself by its own acts, nor by the
acts or will Of the people of Louisiana. Left
to themselves and the people OF the Safe, it
is admitted on all hands, Kellogg and his
Legislature could never become lie tdcto
government, or a government of any kind
ana it is perfectly evident from the testimony
that McEnery and his Leg stature with
had more of the forms Of regularity
about it and probably the majsrity
OF votes. though rocking with fraud and
not free from intimidation and force, would,
Without Federal aid have obtained pos
session of The government and constituted the
government lie tocto but .or the interference
of the Federal Executive. Kellogg and his
Legislature had never been in power: his Le-
gislature had not vet assembled by whom
votes for Governor were to be counted: no
organization of his government had taken
place when the Federal Executive interposed
by military force, on the alleged authority of
an order from the United States District
Judge, which all parties-at least all iurists
and lawyers, except perhaps the Attorney
General, if that constitutes an exception-ad
nit to have been void, and placed the kel-
logg government in power and kept it there
1t was this. and this alone, which gave it in
ceptlon, which placed and continued it in
anfira and univ ohio
ter of . government De t0ctO.
Having in this way only become de tacto
government, the executive could give it no
additional sanction or validity by recognizing
it as the lie tdctO government. nor bind Con-
gress or either house Of Congress by such re-
cognition only of his own acts, of the govern
ment lie had instituted and set up, not of one
which he had found in existence. The Act of
1875, which has been claimed as making the
acts of the executive equivalent to the action
or authority OF Congress, can only have that
effect, if at ALL SO taras his action comes with
in and was authorized by ii: and though that
act may Justify the employment of the military
force to put down instruction and domestic
violence, and to protect and keep in power
against iusurrectionary forces even a merely
de fact0 government already existing, upon
which express no opinion, it certainly does not
authorize him to create and institute a State
Government which had no previous or other
existence in fact or law. The logical process
which can give to a subsequent recognition by
the Executive of government thus instituted
any greater legal validity than if inherited
from its organism, or make it's action binding
on ell her House of Congress- IS a process
which, however valuable it may prove in
more skillful hands. is of no value IN my
hands, and / could not use it so as to reach
such a conclusion without cutting my own
fingers. To me the whole process seems TO
be circular, beginning where it ends and end
ing where it begins, and with whatever veloci-
ty it may be made to reyolve, it never moves
a step forward from the point where it started.
1t leaves this Kellogg government, which as
sumed to elect Senator in Congress just where
and what it was in its origin, not Legsla-
ture or government OF the State of Louisiana,
but body set up, installed and kept in power
and imposed upon the State by the Executive
Department of the Federal government, and
deriving all its authority from this Executive
action ana do not myself see how the de-