That a federal judge

after made" by the Warmoth board. should have assumed to act at all upon such a bill, would be thought in ordinary times sufficiently alarming, but that he should issue an injunction restraining persons claiming to be state officers, and recognized by the governor of the state, from performing the duties of the office, without even the decent pretext of having in proper form been requested to do so, is simply astounding.

The date of this order was November 16, 1872, and the injunction was served by the United States Marshal on the next day (Sunday). Three days later the legislature of the state took the matter in hand, and passed an act repealing all laws under which the two contesting boards claimed a right to act. Following this immediately one of the state courts, on a bill filed for the purpose, enjoined the Lynch board from acting, and a new board under the governor's lead proceeded to canvass the returns and declare the McEnery ticket elected. None of these facts seem to have operated to the discouragement of the Lynch board, who, on the sixth day of December, proceeded to declare the Kellogg ticket elected. A committee of the United States Senate, which afterwards examined the subject, seems to have thought that the dif ficulties in the way of a canvass by the Lynch board, were quite too serious for men of reasonable discretion to encounter; for, first, if they had ever held office, they were legislated out; second, if they were in office, they were enjoined from acting; and, third, if they were permitted to act, they had no returns to canvass. These, however, seemed to have proved insignificant obstacles to persons who probably knew that in support of anything they might do "decrees and mandates" were to be had, and the aid of "all necessary troops." Their adjudication embraced the cases of governor, lieutenantgovernor, auditor, attorney-general, secretary of state and superintendent of public instruction, together with the members of the legislature; and could have been based upon nothing more authentic than public rumor and the reports in newspapers. In fact, the members of this "board" can

the

vassed only their own preferences, and having no votes to count, simply counted in their friends.

The canvass by the new board and its result were proclaimed by the Governor, December 4, 1872. The next night Judge Durell, as the senate committee say, "out of court, at his house, late at night, without application by any party," made an order "which is without parallel, and it is hoped will remain so in judicial proceedings." This order, which is entitled in Kellogg's case, recites the injunction or restraining order, and the governor's proclamation, and then proceeds: "Now, therefore, in order to prevent the further obstruction of the proceedings in this cause, and further, to prevent a violation of the orders of this court, to the imminent danger of disturbing the public peace, it is hereby ordered that the marshal of the United States for the district of Louisiana shall forthwith take possession of the building known as the Mechanics Institute, and occupied as the state house for the assembling of the legislature therein, in the city of New Orleans, and hold the same subject to the further order of this court, and meanwhile to prevent all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and returns made by said pretended returning officers in contempt and violation of said restraining order; but the marshal is directed to allow the ingress and egress to and from the public offices in said building of persons entitled to the same. E. H. DURELL.”

A state-house to be seized and held subject to the order of an inferior federal judge! If any act could be supposed too monstrous to be attempted, this seizure must certainly be such an act. A judge who thus, without authority, and without observing even the proprieties of form, assumes to direct the invasion of another jurisdiction, and to seize upon the building where the representatives of its sovereignty meet, and having thus installed himself in position of dictator, adjudges without right and without hearing what is and what is not lawful authority under the state election laws, must surely, it would seem, find his pretended authority treated with contempt by all ministerial officers, and himself dealt with severely

and promptly for his great wrong to free government. Not so! The shameful history is too familiar to be reproduced in its details further. A state government was set up under this midnight order by the aid of military force, and in a single day it had no difficulty in impeaching and removing one governor and installing another suited to and ready to co-operate in its purposes. True, the constitution of the state, as well as its statutes, recognized the right of an accused party to be heard in his defence, but of what force could constitution or statutes be in a state-house held "subject to the order" of a judge who did not recognize them, supported by troops instructed to obey his "decrees and mandates ?"

McEnery, thus excluded from office by federal power and federal military force, in a manner that superseded all the usual methods of trying civil rights, appealed to the President, and begged him "in the name of all justice to suspend recognition" of either of the contesting claimants to the government until both sides could have an opportunity to be heard, and announced to him "a committee of many of our best citizens on eve of departure for Washington" to lay the facts before him. The answer of the attorney-general to this appeal is here given, and is a model of its kind. The law "hears before it condemns and proceeds upon enquiry," but in the "department of justice," which apparently knows the true prince by instinct, suggestions of such weakness are put aside with calm serenity.

"DEPARTMENT OF JUSTICE, Dec. 13, 1872.

"HON. JOHN MCENERY,

"New Orleans, Louisiana: -Your visit with a hundred citizens will be unavailing so far as the President is concerned. His decision is made and will not be changed, and the sooner it is acquiesced in, the sooner good order and peace will be reGEO. H. WILLIAMS, Attorney-General."

stored.

On the next day, the officer commanding the military forces at New Orleans was directed by telegraph "to use all necessary force to preserve the peace," in that state. As the pres

ervation of the peace is peculiarly the province of the state government, this order could only be understood as one to use all necessary force to set up and sustain the state government that had been decided on by Judge Durell and the department of justice. In that sense it has been obeyed and enforced ever since. Only a single break in the monotony of usurped judicial and military rule has since occurred. On the 14th day of September, 1874, the people of Louisiana, by spontaneous movement, expressed their intention no longer to submit to the government thus forced upon them, and it instantly disappeared. With all the machinery of government in his hands, and the police of the great city of New Orleans organized and disciplined at his command, Gov. Kellogg was so utterly powerless that he did not venture to appeal to popular support, but with a keen sense of what it was that constituted his constituency, he called upon the federal authorities to restore him to power. The call was not in vain, and the only government which had sufficient popular sanction in the state to be able to stand alone for a single hour, was dispersed as revolutionary, by federal proclamation, and the government that had been set up by the midnight order of a judge, acting without jurisdiction, out of court, and without parties before him, was restored to power.

Thus far, it will be seen, that the Kellogg government had no better or other justification or excuse for its existence than the pretended judicial order of Judge Durell, for which a parallel will be sought in vain in the history of the AngloSaxon race since parliamentary government was established. The Kellogg government never came in on a canvass of votes, but was set up under the judge's order, with military assistance and protection, in a building held under the judge's control until his further order. The President's 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 can 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 managed by a semijudicial receivership, with only this difference from ordinary receiverships, that even the power that set it up can not call the receiver to account for any mismanagement or abuse of trust. Great and manifold as were these invasions 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 subordinates 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 substantial control into their own hands. Such anticipations might well be indulged, even after making large allowances for election trickery and fraud, if the Kellogg government was so entirely lacking in popular support as was generally believed.

But all anticipations proved greatly deficient in their allowances for the resources of judicial-military government. To begin with, that government had what was believed to be an impregnable position in the election laws of the state, which seem ingeniously contrived to enable a corrupt executive to perpetuate his power. The whole machinery of the election laws was in the hands of the governor, who appoints all the officers. It is so unusual in the states that the local election officers shall be appointed by the governor, that this of itself was well calculated to excite suspicion, which, however, might, to some extent, have been allayed by the provision of statute that the members of each election board should be selected

from the different political 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 which, by the law, was to represent "all parties," was, in fact, made up of five of the governor's party, and though one conservative was after