Year: 1874




purpose OF controversy with Mr.. Reverdy Johnson
or any one else. formed my opinions upon the
historical facts ana upen constitutional principles
which supposed to be settled. had not then at
tentveiy read Mr.. J0hnson's first letter; but,
upon are-examinatiOn OF his view Of the Presi-
dents course, am constrained to adhere to my own
opinion, as expressed in my letter OF October Ia.
do so with the utmost respect for Mr.. Johnson
for whom ! have the strongest personal regard
dating back for period Of twenty years.


do not know that the further continuance OF
this discussion, so far as am concerned in it, can
be very profitable to your reauers, and propose,
therefore. 10 leave 1t with brief restatement OF
my position. Mr.. Johnson comedies that the
Presidents original act In enforcing Judge
Durells DEGREES In 1872 by the operation OF which
Kellogg became the dc JJct0 Governor OF Louisiana
was Illegal but he considers that when this de
Jdct0 Governor, who had no legal title to the Office
applied to the President In 1873 and again in 1874
to be protected and maintained in the oico by the
power OF the United States, the President had only
to consider that he was the actual Governor.
There is just where have the misfortune to
differ from my excellent and distinguished
friend. AS understand the Presidents
constitutional duty when applications of this kind
are made to him. he is bound to do two things;
first, to receive the application and consider it;
second, to decide whether the person making the
application is the lawful Governor OF the State.
In ordinary cases, and probably In all that are
within the intent Of the constitution, this latter
inquiry win require no investigation and cause
delay; but 1t IS always to be presumed that the
decision that the applicant Is lawfully entitled to
hold the office Is involved in the cousi, Grafton OF
his prayer, for It is clear that the constitution
never intended that any one who was not law
fully entitled to hold the onice should have
the aid OF the United States to maintain him In it.
This, however, was no ordinary case. 1t was the
case OF person who had become de hact0 Governor
through an unlawful act performed by the very
President to whom he applied for further forclble
interference to enable him to Keep possession;
and II I am right in my proposition that the con-
stitutiohai duty OF the President. when an appli-
cation is made to him for the protection OF the
guarantee pledged by the constitution is to decide
on the legality Of that PERSONS title. then am
right in ing that President Grant was bound to
know officially in 1873 and 1874 that Mr. Kellogg
was not the lawful Governor OF Louisiana, and
therefore could not have the aid he asked for.
DEFINITE LANGUAGE OF THE CONSTITUTION.
Why, then, do say that the President must
always decide that the person applying as Gov
ernor is the lawful Governor OF the State as.
sert, 1t first upon principle; secondly upon prece
| dent Upon principle 1t seems to ME Impossible
| to suppose that when the constitution speaks OF
the Legislature Of State (when In session. or of
the Governor when the Legislature is not in ses.
sion. as the organ by which the State is to apply
to the United States to be guaranteed against do
mestc violence. 1t means anything but the de juSe
Legislature or the de jure Governor. And In this
respect this constitutional duty differs widely
from the practice that prevails between nations
In the recognition OF de Jact0 governments. That
intern atonal practice is to recognize the organ
OF the foreign State any power that seems for the
hntrc hor Oh n<roI nf tHA Ye 10
not a practice that is governed by fixed rules,
which con1ne the recognition to any particular
organ known to the law OF the foreign State as
previously understood. The organ may be one
utterly revolutionary and unknown to all the pre-
vtous laws and traditions OF the foreign state, ana
yet If 1t practically wIelds the political power OF
that state it may be recognized and dealt with by
other nations as the representative OF the foreign
state. not so that the guarantee clause OF our
federal constitution deals with the states. OF
this Union. 1t uses definite terms known
to our republican forms OF government.
and to our constitutional law. 1t names
the organs through whom the state is TO
apply for protection against domestic violence,
and consequently, by o familiar rule OF interpre-
tation, 1t excludes all other organs. Tney are
the Legislature and the Governor, and they are
the lawful Legislature aud the lawful Governor,
because any other bodies, although assuming
those oacial names, are just as much excluded as
II they called themselves Directory, or Council
Of Five Hundred, or q Committee Of Vigilance.
Their right to be regarded as the organs Of tho
State, for the purpose Of obtaining this constitu.
tlonai guarantee, does not depend upon
their present actual control OF the State,
but 1t depends upon their being the Legislature
and the Governor; functonaries known to our
republican system, and incapable OF existing In
point OF law excepting when they exist lawfully.
For tins reason, and also for others that have
not space to detail, think that the international
recognition OF foreign de Jdct0 governments affords
no analogy that will assist US in determining how
this constitutional duty OF the United states to.
ward tne several States Of this Union Is to be dis
charged.


THE RHODE ISLAND CASE REVIEWED.


As to the precedent, understand tie Rhode
Island case to have decided that the Presidents
duty requires time to consider the legal title OF
Governor before he responds to an application
to be protected against an insurrecti0D.
Living at the time OF this occurrence In the neigh
boring state OF Massachusetts, naturally took
strong interest in the questions which 1t involyed
and four years before those questions came before
the Supreme Court made myself thoroughly &C
quainted with the facts. I rccoect them a. n
they had occurred last week; but speak now
from the record as well as from memory. Cover
nor King was Governor OF the state under the
charter Thomas w. Dorr claimed TO be Governor
under a constitution which was lcrroneously)
alleged to have been regularly adopted by the
people. Both governments were organized; both
had forces In the field; each was as much De 1cto
government as the other, for the people were
about equally divided in their adherence 10
them. The charter government, however, was
regarded out Of the State. and BY the
President, as the "existng'' government, in the
sense Of being the one against which the other
was in insurrecton. Now, did President Tyler re.
ceive and act upon Governor Kings application to
the President to put down an insurrection simply
upon the ground that Governor King was the cx-
listing or actual Governor Certainly not. He
decided that the existing Governor was also the
lawful Governor, because the pretended constltu-