The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1875-03-18

pcllhlo, AIN nOV INV ""D' w bN - ~
that evidence i have read most OF 1t
carefully, and the rest enough to see that
the able report of the majority presented
to the Senate by Senator Carpenter, con-
tains the fair result of the whole evidence
and draws the correct legal conclusion
that there was no legal election and nc
legal government; that the election can
vass of the votes and the pretended In
stallation of the officers claiming to be
elected were equally void, both as to Nc
Emery and his Legislature and Kellogg
and his Legislature.
THE DE FACTo ARGUMENT.
ConCurring, therefore, with the con-
clusion of that report that the election
was utterly void, | must also hold that
neither the Kellogg Government nor the
McEnery Government can be recognized
as government de jure, and this, think
ought to dispose of the question OF Pinch
backs rights under an election resting
upon the validity of that Government.
| deny the right of any one to claim ad-
mission here on the ground merely OF a
de facto State Government, which is
found to be without legal authority. Be-
fore proceeding to consider the de facto
character of the State Government
since all the evidence is before us bear
ing upon the question of Pinchback's s
right, which the majority ofthe commit
tee believed showed that there was no
legal government, and the majority OF
the Senate may draw the same conclu-
sion-what becomes of the prima facie
case resting upon the presumption aris-
ing from the certificates? Is not the ev-
idence now to be considered upon the
merits. For illustration, take the strong
presumption in favor of innocence III a
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
and 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 ac-
quit. | now come to the question wheth-
er Kellogg and his Legislature Ionsti-
tuted de tacto government which by
any recognition it has received has so
far grown into Il legal or legitimate gov
ernment that its acts in electing Mr..
Pinchback have become binding upon us
SO as to require or properly authorize US
to admit him TO seat here.
HOW KELLOGG BECAME DE FACTo GOVERNOR
| conceed that at the time of the SEN
atorial election the Kellogg Government,
(the Governor and Legislature) consti-
tuted in one sense de facto Govern
ment; that it was in the actual posses
sion and exercise of the governmental
powers over that State. But how did it
obtain the possession of this power, and
who gave it this de 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
Leftto themselves and the people Of the
State, it is admitted on all hands Kellogg
and his Legislature could never have be-
come defacto Government or a Govern
ment of any kind, and it is perfectly evil
dent from the testimony that McEnery
and his Legislature, which had more of
the forms OF regularity about it and prob
ably the majority of votes, though reek-
ing with fraud and not free from intimi-
dation and force, would without Federal
aid have obtained possession Of the Gov
ernment and constituted the Government
de facto. But for the interference Of the
Federal Executive Kellogg and his Leg
islature had never been in power; his
Legislature had not yet assembled by
whom votes for Governor were to be
counted; no organization of his Govern
ment 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 jurists and lawyers,
except perhaps the Attorney General, if
that constitutes an exception, admit to
have been void, and placed the Kellogg
Government in power and kept it there.
1t was this, and this alone, which gave it
inception, which placed and continued it
in power and gave it its entire and only
character of a Government de facto.
THE EFFECT OF THE EXECUTIVE ACTION.
The act of1795, 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 far as MS action comes within and
was authorized by it, and though that
act may justify the employment of the
military force to put down insurrection
and domestic violence and to protect and
keep in power against insurrectionary
forces even a merely de facto Govern
ment already existing, upon which | ex-
press no opinion, it certainly does not au-
thorize him to create and institute aState
government which had no previous or
other existence in fact or law. The log
ical process which can give to subse-
quent recognition by the Executive of a
government thus instituted any greater
legal validity than it inherited from its
origin, or make its action binding upon
either House of Congress, is process
which, however valuable it may prove in
more skilful hands, is of no value in my
hands, and | could not use it so as to
reach such conclusion without cutting
my own fingers. To me the whole pro-
cess seems to be circular, beginning
where it ends and ending where it begins,
and with whatever velocity it may be
made to revolve, it never moves a step
forward from the point where it started.
1t leaves this Kellogg Government, which
assumed to elect a Senator in Congress,
Just where and what it was in its origin
mot Legislature or Government of the
State Of Louisiana, but body set up, in
stalled and kept in power and imposed
upon the State by the Executive Depart
ment of the Federal Government, and de-
irving all its authority from this Execu-
tive action; and do not myself see how
the decisions of the Louisiana courts, con-
shutting as they do only one branch Of
this Government thus set up, can be any
any more binding upon us than the action
of the pretended Legislature, whether
these judges were in office under pre-
vious existing governments, or as was the
case here, judges had been thrust out and
others put in theirp places. for the purpose
ofsecuring the desired course of decision.