Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-04-20

! order OF aJudge aGlng without jurisdiction
out of court, and without parties beforu
him, was restored to power.
Thus far it will be seen, that the Kel
lo9g government had no better OF othel
justification or excuse for its existence thai
The pretended judicial order Of Judge Du
rel, for which a parallel will be sought il
vain In the history Of the Anglo Saxon ract
since parliamentary government was estab
lished. The kellogg government neYel
came in on a canvass Of votes, but was sci
up underline judges order, with military as
sistance and protection, in a building held
under the judges control until his furtheI
order. The Presidents recognition of that
government was based upon this order, and
all Federal executive and military action
expressly ignored any considerations which
might lie back of it. The order has never
been revoked, and though void in Itself
and a most daring usurpation OF
the rights of the State, it has had
an active and most powerful force
and vitality to this day. The condition Of
things a only be properly indicated by
saying that from the date when a State
government was set up by force, under this
order, the affairs of the State have been
AAAtAnzLA Ul . 1EAnA-Nu4ALAGA LEDGANEl1uADs
with only this difference from ordinary re-
ceiEerships, that even the power that set it
up can not call the receiver to account for
any mismanagement o. abuse Of trust.
Great and manifold as were these inva-
siOns Of popular and constitutional rights,
they were destined to be followed by others
still more serious and alarming. The
Constitution and laws of the State, though
set aside for the time being by the Federal
judge, were still nOminally in force, and
Gov. kellogg and his Legislature and sub
ordinaies prOfessed to be acting under
them Under the Constitution an election
would take place in November, 1874, and
though a Governor was not then to be
chosen, a Legislature was, and this election
would enable the people to take substan-
tial control into their own hands. Such
a~nticipations might well be INDUCED, even
after making large allowances for election
trickery and fraud, if the kellogg govern
ment was so entirely lacking in popular
support as was generally believed.
But all ~anticipatiODs proved greatly de-
iicient in their allowances for the resources
of judieialmilitary government. To begin
with, that Government had what was be-
lieVed to be an ~impregnable position in the
election laws Of the State, which seem in
geniOusly contrived TO enable a corrupt
executive to p~erpetuate his power. The
whole machinery of the election laws was
in the hands of the Governor, who appoints
all the officers. II is so unusual in the
States that the local election officers shall
he appointed by the Governor, that this of
itself was well calculated to excite suspi-
afnn Uhfah hnwavraW nnfuhF 20 e0u~a ~
tent have been allayed by the provision of
statute that the members Of each election
board should be selected from the different
parties. How much regard was
paid to this will be apparent when It is
seen that the State Returning Board Of five
members, to which the local boards were to
send their returns for final canvass, and
by the law, was to represent sail
was, in fact, made up Of five Of
.be Governors party, and though one Con-
serVatiye was afterwards placed upon the
Board By a concession to an almost uni
public demand, this one representa-
i've Of sail parties" but the Governors,
resigned, when a course Of deliberate
was entered upon, leaving the whole
business of the Returning Beard in the
hands Of a single party.
So far as his Board was to act in can
7assing the votes cast in the various pre-
.incts for State officers, it answered to the
State canvassing board, and there
,Ould be no reasonable objection TO its be- /
nc composed exclusively of members Of
me party. Its duties would consist in an
examination Of the local returns as to their
commences, and a footing up of the totals, |
With a declaration of the results shown by
UGH totals. TteSe duties would be merely
Ministerial, and while the declaration
would constitute priHG TGcie evidence Of
he result Of the election, it would not bea
adjudicatiOn.' But the election
8W Of Louisiana made the State Returning
Board something more than a board Of
,tate ~eanvasseTs. II gave the BOard
authority 10 90 behind the returns when
yer they were accompanied by u protest
a supervisor Of registration or a commits
Of election, showing, under oath,
hat violence, intimidation, or corruption
{ or near the place of registration or cleo
ion had prevented a fair, free, peacaabie
nd full vote, and to inquire into and pass
IpOn the effect of such unlawful action.
This evidently conferred upon the Board
functions in cases in which pro-
ests were sent up, but if they could exer-
iSe such functions in other cases, it must
e upon grounds not recognized as valid in
ther States.
Whatever may be thought Of Other pow
IS conferred upon the Returning Board,
ne Of the provisions Of the election law
lust certainly be conceded to be very ex-
-aOrdinary. We refer now TO the
revision which made the Board judge
the election of members Of the Legis-
lture, required them 10 make return Of
hose elected to the Secretary Of State, who
D turn was to transmit a list to the clerk
the last House and Secretary Of the Sen
Je, respectively; and which provided fur
Der, that the persons named in the clerks
SITS sand none other" should be cOmpe-
mt to organize the two houses respectively.
We say this provision is very %extraOrdi-
for several reasons:
1. Il is in utter disregard Of a funda-
rental principle Of representative govern
lent, as old at least as the reign Of the
rst Stuart, that each house Of the legisla-
IRE is to judge of the qualification, cleo
on and return Of its own members. That
arrow and arbitrary monarch undertook
y his proclamation for his first Parliament
limit the choice Of the electors in select
n representatives, and he designated per
1ns bankrupt and O~utiawed," as those
tho were not to be sent up. The electors
Bucks disregarded the admOnitiOn, and
Sir Francis Goodwin, who had
cen Outlawed in civil proceedings. The
leTif refused to make the usual return,
nd another election was had, AMI Sir
Ohm FOrtescue was returned. The House
{ Commons, then in The infancy Of its
over, and with but an imperfect under
Of the privileges ever since eIeT-
ised with general consent and appreciation,
ynored the restriction in the Kings proc
lmatiOn, and gave Sir Francis Goodwin
is seat. The controversy over this action
the anger of the King, and the refusal
T the House to listen TO the advice or re-
lOnstrauCe Of the lords and the judges
re too familiar to historical students to
squire that the facts should be repeated
ere. 1t is true that the House at length,
nth the consent Of Sir Francis Goodwin,
nd in order to avoid a quarrel with the
ling at The beginning of his reign, con-
snted TO a compromise, under which both
GOODWIN and FOrtesCue gave way to a new
but the right Of the House TO
finally on the questions which the
ase raised has been considered as settled
rom that periOd.f In America this parlia-
lentaTy privilege Of legislative bodies has
lways been regarded as 7 resting upon
ncient and undOubJed right, as ungues-
iOnable as the right to punish cOntempts
{ its authority, and as necessary TO the