Year: 1874




The HERALD has become the forum of one
of the most interesting juridical discussions
that have ever taken place in this country.
The Importance, difficulty and novelty of the
question in debate and the unsurpassed ability
of the disputants will fix the attention of
jurists, statesmen and enlightened inquirers
into the theory OF our institutions. 1t is not
possible that the discussion can stop with
Mr. Johnson's second letter; for, though his
argument has great force and ccgency, it col
lides with such mass of hitherto uncon-
tested opinion in high official places as to
provoke and challenge the best legal ability
in the United States With our present
lights we do not doubt that Mr.. Johnson's
position is tenable. II is at least certain that
Mr. O'Conor has not yet dislodged him, and
that eminent jurlst will need all his wonder
fu equipment of controversial resources
in this battle of legal giants-giants,
however, who encounter each other with
knightly courtesy. Mr.. OConor was mis-
taken in supposing that the difference be-
/, tween his views and those of Mr.. johnson
were '.such as joint conference and con-
sultation would have obviated." Their vari-
ance is radical. Mr.. Johnson closes his
second letter by saying Upon the whole,
then, conclude that Mr.. OConor's view has
no support either in principle or authority"
Of course question on which these great
lights of American jurisprudence so dia-
metrically differ, lies inter opices juris, among
those heights of legal science where only
great constitutional lawyers can feel sure of
their footing.


1t shall be our humble task to point out
from distance some of the difficulties Of
which the public will require further elucida-
ton. We regard these great masters who do
us the honor to make the HERALD the vehicle
Of their arguments as in a certain sense our
guests and must treat them with the same
dete-ential courtesy which they observe
toward each other. But We must also follow
their example of Independent criticism. We
will to-day practise this freedom toward Mr..
Johnson, whose opinion We in the main
accept and whose letter is the present topic of
remark. Some Of the logical consequences
Of his position will surprise and almost





more free from the refining ingenuity which
often results in paradox than his masculine
reasoning. The consequences to which we
refer are not explicitly avowed by Mr.. John
son, but we do not see how he can refuse to
accept them.


The first which we will name is his virtual
rejection of the theory Of the President while
fully indorsing his recent practical action
Mr.. Johnson's legal view stands in as sharp
opposition to that Of President Grant and his
official advisers as to that OF Mr. O'Conor
The President has assumed in all his Louis
lana messages that he possesses the very
authority which Mr.. O'Conor claims for him.
The substance of what he said to Congress
was that unless it acted on the subject he
should continue to recognize Kellogg-a
gratuitous and needless piece Of information
if he had no legal right to do otherwise.
The whole tenor OF his messages implied that,
until Congress should act the course he
would pursue rested in his own official dis
cretion, and that he was merely informing
Congress in what manner that discretion
would be exercised. His reason for con-
tinuing to recognize Kellogg was that he
continued to think him the legal Governor,
leaving the inference to be drawn that he
might change his official action if there was
any possibility of his changing his opinion.
Except on Mr.. O'Conor's theory of his power
it was as useless for the President to tell Con-
gress that he would continue to recognize
Kellogg as it would be to send communion
ton informing them that he would continue
to enforce the judgments OF the Supreme
Court. On the strictly legal point, therefore,
we are brought to the curious conclusion that
it is Mr.. johnson who is opposing and Mr..
O'Conor who is supporting the view Of the
President.


This singular and unexpected interchange
of attitudes is perhaps merely curious. But
our next point will disclose a consequence of
Mr.. Johnsons reasoning Of such innovating
gravity that we do not feel quite sure that Mr.
johnson will not hesitate to accept it himself
But it follows from his premises with such in
evitable logic that he cannot dlsavow it with
out discarding the most forcible arguments Of
his present letter. Although he does not deny
in terms he certainly denies in substance that
even Congress can overrule the decision of
the President when it has once been made.
Every calamitous consequence which Mr..
johnson states would follow from re-
versal of the Presidents decision by
the President himself, would equally fol-
low from reversal by Congress. 1t would
equally nullify all laws, divest all rights and
vacate all official proceedings during the
period while the deposed State government
was in power. II the argument founded on
these important considerations is valid it
necessarily follows that the President first de-
cision is as irreversibly binding upon Congress
as it is upon the President himself Further
argument may establish this as sound con-