Year: 1874




HERALD


DEAR SIK-Ry the letter of Mr.. Charles O'Conor
Of the 10th ull published In issue OF the 30tn
ind that he differs with me upon one of the
points contained IN my communication TO you on
the Louisiana difflculty. l have considered the
reasons given by Mr. O'Conor in support OF his
view with the attention due to his conceded
ability as lnrist, and am yet compelled to ad-
mere to my opinion. Mr.. O'Conor admits that,
precise and guarded as is the constitution Of the
Uulted States in reference to the power or the
President to interpose In the case OF domestic vio
lence when called upon to do py one who claims
to be the Governor OF State IN the recess OF It's
Legislature, his duty to interpose is imperative If
ne Is satisfied that the person making the call Is
the Governor. lie therefore necessarily con.
cedes that, when the President acts upon
such call and then recognizes the authority OF
the person making IL, his act Is binding upon
everybody. AS lar, then, as the people OF Louisi-
ana and The people everywhere were concerned
the Presidents original recognition OF Kellogg
established the fact that he was Governor, and,
rs such, entitled 10 obedience. And this is per-
Iecty independent Of the fact whether the Presi-
dent decided correctly or not. So iar Mr.. O'Conor
concurs with me, and, believe, with the univer.
sal opinion OF the country. He parts with me
only in the view which l have taken that the
Presidents decision, when once made, is as con-
elusive upon him as Mr.. OConor admits 1t to be
upon everybody else His doctrine Is that the
President may change his decision in such case
as often he may change his opinion upon the
TACT. ask your indulgence for few words on
this point in support OF my own view.


Fa'st-How does the question stand upon prin-
ciple II the President under the constitution is
bound, IN such an exgency as Is supposed, to de.
termine who Is the legitimate Governor OF a
State il follow when does
decide his decision should be final. If not final
he is Al liberty to change it afterwards as often
as he may deem proper. How, then, would stand
the acts OF the Governor originally recognized in
the interval between such recognition and the
Presidents subsequent change OF opInlon2 Are
sucn acts to be deemed nullities9 Can the people
OF state, who may have been aggrieved by the
course Of the Governor, call him TO account for
any injury they may have sustained, upon the
ground that the Presidents subsequent recogni-
tion Of some one else conclusively determines
that he was not the legitimate Gov
ernorS And these suggestions equally ap-
pcabe to the PRESIDENTS recognition OF the
Legislature OF q State when call Ia made upon
him under the constitution by that department..
He changes his opinion afterward, on becoming
convinced that the body was not legitimate, and
recognizes some other body as the Legislature. II
he has right to 40 this one week or one month
after his first decision he has the right to do it
after any aspe OF time Are all the laws passed by
the Leg stature in the interval between his first
decision and his subsequent reversal OF 1t to be
declared void Are the rights which have grown
out OF such legislation TO be annuiieda Are all
the debts contracted by the Legislature or under
Its authority to be repudtated2 l thiuk all VIII
admit that this cannot be sound doctrine. And If
II is not 1 see reason Tor imputing error
IL. eXCeDt bV SuDDOSinp
first decision OF the President on the
call OF Governor or Legislature is as conclusive
upon him as MI O'Conor adults it to be upon
every one else. Should the President who recog-
nizes Governor cease to be President, could his
successor, when called upon to suppress violence,
refuse to recognize the same officer and determine
that some other person was Governor? /? Suppose
the President refuses to recognize the person first
making the call, and subsequently recognizes
another as Governor, can he alter his last decision
and reinstate the first man in ofice 1t is in my
opinion. obvious that such changes were never
contemplated by the constitution. Mr. O'Conor
is, as gather from his letter. what is termed
strict constructionist, contradis1lngushea from
Q liberal constructionist of tie constitution. l
never could comprehend the grounds upon which
such distinction can rest. The constitution, like
every other written instrument is to be construed
according to the ordinary and usual accep tation
OF the terms used. A different rule necessarily
leads TO confusion and error. To pare down the
meaning OF the language used by literal con-
struction OF 1t VIII often defeat the very object
which II was designed to accomplish Too strict
an Interpretation, as well as too liberal an inter-
probation, Is not o legitimate construction at all,
but, indeed, misconstruction. This view was
taken by the Supreme Court in the case OF McCu-
Tough VS.. Maryland "A Wheat.). and has since
been main ntained in various decisions of the same
tribunal and by every text writer on the subject.


Agreeing with Mr.. OConor as to the danger TO
be apprehended from centralized govel lnment,
or from the power Of the President to interfere at
all with the government OF O State, ] can, at the
same time, imagine no doctrine to be more Gen.
tralzlng than the one he has asserted. The power
to interfere once, which the constitution clearly
gives, may. in the opinion Of some be dangerous
one, but the power to interfere from time to time,
according to the varying opinions OF the Presi-
dent is to place the State government entirely IN
the discretion OF the President. BY this doctrine
he might make and unmake Governors, make and
unmake Legislatures, IND use the army and
navy OF the United States to maintain by
force MS changing decisions. II tue authority
to act once may be perious, the authority to con-
tlnue to act seems to involve extreme peril, and
indeed, to be fatal TO the States. But the power
to interfere once, in the view OF the constitution,
is not perilous one, and is not only important.
bur essential to the peace and safety OF the States
In the Federaltst No. q, written by Hamltonl the
necessity for such power Is clearly pointed out.
Its existence was made an objection TO the ratid-
cation Of the constitution, and Hamilton, in the
paper referred to, met 1t successfully. After
stating that the objection arose In the minds Of
some from "the inordinate pride of State impor-
tance," he adds tnat II 1t prevailed ut would
deprive us OF one OF the principal advantages to
be expected from union"


Mr.. o'Conor's reference to the practice and au-
thority OF courts to change their opinions OF the
law, 30 far from maintaining his doctrine, is, in
my view, directly opposed to it. Analogical rea-
soning as often leads to erroneous to correct
conclusions. The facts are very seldom precisely
the same, and wnere they arc not the legal results
are seldom the same. II Is not true that o court
which has nrannun ed n indulllnlat hns n riuht