of the returning board, who could make oath to facts of which he knew nothing, in order to unseat others, did not venture to decide against them. Surely, the case must have been very plain in their favor when it could thus be passed over by this board without seating others in their place! We have endeavored to consider this case from a purely legal and constitutional standpoint. It is unfortunate that it has been obscured, somewhat, by its supposed necessary connection with party politics. It has no such connection. It concerns the rights and liberties of all the people and all the states, and one party has the same interest in reproving the outrages as the other. It as far transcends in importance all mere party questions at this time, as the life of a free state transcends in value the salaries of a few offices. The party which nominally gains by these wrongs, may be the one to actually suffer by the next, for which these furnish the precedents. But indeed no party in free government can possibly gain by the destruction of the liberties of any. It is like a great destruction by fire, in which the whole community must necessarily suffer. Indeed, Kellogg and his associates belong to no party but that of themselves. A republican senate has indirectly condemned the Kellogg government by declining to admit to a seat a senator chosen by it. The house has repeated the condemnation, by ejecting the members returned by fraud in 1872. A committee, mainly of republicans, while declining to pass upon Kellogg's election, has unanimously censured the usurpation of 1874. The leading lawyers among the republicans of both houses, have generally united in the opinion that the proceedings of the pretended state government, ever since 1872, find no support in the constitution or laws of the state. The best sentiment of the republican press is to the same effect. this general sentiment the usurping judge abandoned his office in dismay, with the alternative presented to him of probable impeachment and removal by a republican Congress, if he should fail to resign. No man, therefore, can be accused of partisanship who unites his voice in the general condemnation, or who, for the sake of the perpetuity of free institutions threatened by such measures, and certain to Before be destroyed by their repetition, enters his protest as an American citizen against them. An act, like that of Gen. De Trobriand, wounds our institutions in their most vital and sensitive parts. 1. It invades the immemorial privileges of the legislative body, being in direct violation of its constitutional right to judge of the election and return of its members. Nothing need be added here to what has already been said on that score. 2. It violates the rights of the state by encroaching upon its authority, and overthrowing that department which most immediately represents the sovereignty of its people. It is of no consequence that the governor invited it. The governor, in acting outside his constitutional power was no more to be regarded than any other individual, and all parties to whom he appealed were bound to know that he was inviting aid in support of usurpation. It is precisely at this point that our institutions are most vulnerable. The proper boundary between national and state powers was agreed upon after long discussion, with much difficulty as the result of a compromise, and it has been found so satisfactory that we have willingly endured a most destructive war in its defence. The cost of that war has been expended in vain if at its conclusion we propose to treat that boundary as a shadowy line which none need regard. The only safety to our institutions consists in standing by their fundamental principles, of which the just division of local and general powers is, by the constitution, made first and most prominent. 3. But nothing can exceed in immediate danger the employment of the military to coerce the civil authority. Upon this subject Anglo-Saxon people have always been justly sensitive. They showed it by the petition of right, in which Charles I. was compelled to assent that soldiers should not be quartered upon the subject, and that commissions for proceeding by martial law should be revoked. They showed it in the declaration against a standing army in the bill of rights, upon the basis of which was settled the revolution of 1688. The people of Boston showed it when, in 1770, they drove the royal soldiers out of the town. The federal constitution and the constitution of every state in the Union contains provisions referable to the same well-founded jealousy. The Parliament of Great Britain will make provision for the government of the army only from year to year, in order that at all times it may be subject to parliamentary control, and that no ambitious executive may be enabled to employ it against the constitution. British statutes make careful provision against the interference of soldiers in elections, and these have their origin in a belief that military ideas are, to a large extent, antagonistic to those upon which civil government must be administered.* Is this belief an idle prejudice? Let the case of Louisiana answer. In that state an eminent miliiary commander, upon the heels of the late military settlement of contested seats in the legislature, and while the people were justly excited and indignant, gravely and seriously proposed that by act of Congress, or proclamation of the President, they should be turned over to him for trial as outlaws by military commission! Was this the proposition of one who revered the constitution and proposed to observe it? And what shall we say of the military secretary of war, who could immedi * In 1645 the house of commons passed a resolution "against any interruption to the freedom of election by any commander, government officer or soldier that hath not the right of electing," and in 1741, it resolved "that the presence of a regular body of soldiers at an election of members to serve in Parliament, is a high infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an open defiance of the laws and constitution of this kingdom." And Stat. 8, Geo. II., ch. 30, which by its preamble declares that "by the ancient common law of the land all elections ought to be free," requires that before the day appointed for any election of peers to represent the Scottish peers in Parliament, or of members of the commons, all soldiers billeted or quartered in any place of election, shall be removed a distance of two or more miles, and not return before the expiration of one day from the close of the polls. De Lolme Const. of England, ch. 4. Later acts only confine the soldiers to their barracks instead of requiring their removal, but public sentiment goes farther than the statutes, and Lord Palmerston once met with severe rebuke in the house of commons for permitting a company of volunteers to attend him at the hustings. Fischel on English Constitution, b. 7, ch. 4. ately telegraph his thorough approval of this officer's course? Such a policy would be thorough, indeed, beginning with the thorough destruction of the constitution, and ending, we know not in what sea of bloodshed, or after what reign of anarchy. Lord Stafford once advocated a like policy of thorough, and a long and bloody civil war, eventuating in revolution, was the result. On a review of the whole proceedings we are at a loss to discover more than one ground on which they can be defended. That is, that the state, having been conquered in the field, its government has fallen to the camp followers as the booty of war. On this ground, and this alone, Durell and De Trobriand may both be justified! T. M. COOLEY. III. CHIEF JUSTICE WAITE-LAW AND EQUITY. The opinion of Chief Justice Waite, in the case of Pollard v. Bailey, reported at length in a late number of The Central Law Journal,* is an admirable specimen of judicial clearness, brevity and condensation, and fully worthy of the high tribunal over which he presides. It would be difficult to find in it a superfluous word, or a paragraph which requires a second reading in order to be perfectly understood. And, as both the premises and the conclusion carry with them their own authority, the entire omission of decided cases to sustain them is worthy, under similar circumstances, of general imitation; for no one feature of the current American judicial opinions. is more striking or more objectionable, than the multiplication of citations in support of positions which a few logical sentences would demonstrate to every legal mind. The case, it may be remembered, is an action at law, brought against one stockholder of an insolvent bank by a creditor of the bank; and the decision is, that no such action could be maintained, the charter not expressly authorizing it, but simply providing in one section that the stockholders should be "bound respectively for all the debts of the bank in proportion to their stock holden therein," and in subsequent sections for a bill in equity by any stockholder for the settlement of all the debts. and an injunction upon the bank. This excellent judgment, rendered by the highest court in the country, and wholly predicated upon a fundamental distinction between the respective jurisdictions of law and equity, is suggestive of some thoughts upon the much agitated question, whether in the nature of things there exists any such distinction; whether it is not purely artificial and conventional, and ought not to be promptly abrogated in an enlightened age, and in a country of which progress and reform are the cardinal maxims and watchwords. It will be remarked, 2 Cent. L. J. 3. * |