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THE ATLANT A WEEKLY SUN
THE DAILY SUN.
Thuksday Mousin'! August 31.
How a Case before tl»c Courts
Testing the •Validity of the
Fraudulent Amendments
has been made, and
how others very pro
bably may be
made.
Wo give our readers to-day the argu
ment of Hon. Linton Stephens in the
case to which we referred, in Tuesday’s
issue, in our reply to the New York
World, and which did actually go before
the Court?, involving the validity of the
• “fraudulent amendments.”
This argument we now present to our
.readers, not only for the purpose of show
ing how these frauds may bo tested be
fore the Judicial tribunals of the country;
but for the purpose also of showing be
yond tho power of legal question, the
utter invalidity of their claim to be re
cognized as de jure or rightful parts of
the Constitution; and how, if the law be
administered, they will be treated as
“nullities” in the peaceful “ manner and
by the authority Constitutionally appointed,’
without any resort to violence or “Eevolu
lion,” in any sense of the word.
This case might have gone to the Su
preme Court of the United States; but,
as we before remarked, the prosecution
thus commenced, was not sustained by
i the evidenoc.
The United States Commissioner,
Swayze, before whom this argument was
made, did, it is true, overrule the posi
tions taken, and bound the party accused
over to tho United States Circuit Court,
in a bond of 85,000, to answer the charge.
In that Court the Grand Jury ignored the
Bill of Indictment preferred, and so that
case there ended, without any decision
upon tho merits of the grounds upon
which the defense rested, touching the
invalidity of the 15th. Amendment, so call-
ftW-nLiii dtiMl »uT
Neither time nor space allows us to
: say more upon the subject at present.
A. H. S.
it is also unquestionably true, that they
were elected and sustained by overwhel
ming majorities of the true constitution
al constituencies of the States for which
they acted; they rested oa the consent of
the*people, or constitutional constituen
cies of the States, and were therefore
truly “Legislatures of the States.” This
Amendment was ratified by the Legis
latures of the States in good faith, and
in conformity with the almost unanimous
wish of the constitutional “peoples.”
How different is the case cf the 14th
and 15th so-called amendments! If these
are parts of the Constitution, I ask, how
did they become so? Were they pro
posed by Congress in a constitutional
manner?
In framing and proposing them every
State in the Union was entitled, by the
express terms of the Constitution, to be
represented in speech and vote by “two
Senators” and “at least one Representa
tive.” But ten States of the Union were
absent. This time their absence was not
voluntary, but compelled. When they
were claiming a hearing through their
constitutional representatives they were
stitaency intact. On the other theory,
being valid, it modified but did ‘^not im
pair the integrity of the State organiza
tion. All this follows from, or rather is
himself a legal and valid autocrat, by
simply “proclaiming” that an amend
ment to the Constitution to that effect
has been proposed by two-thirds of each
House of Congress, and ratified by the
THE INVALIDITY OF THE
“FRAUDULENT AMEND
MENTS^’
<SpcecU of Hou. Linton Stephens,
jDcIItciciI in liis own Defense Before TT.S.
Commissioner Swnyzc, n.t-3Iaeo«,
■Ga., January 23, 1871
comprehended^!!, the one Potion | fSidotaie5oftllMe . tourt l 1 ,6fa.eS 1 nt« ;
that these ten States have never lost tlieir
character as Slates.
although it may be known of all men
Each of these ten States being a State | that there is not one word of truth in the
at the close of the war in 1865, stands j proclamation. The President of the
now' dejure just as it stood then; unless
it lias since that time been changed by
the action of its constitutional constitu
ency. I think each of them was so
changed in the Litter part of that same
year. In each of them a Convention was
elected by a large and unquestionable
majority of the constitutional constituen
cy (although a portion of them were ex
cluded from voting) foi the purpose of
modifying the Constitution. These Con
ventions repealed the ordinance of seces
sion, abolished slavery, and made some
other changes in the several Constitu
tions, but (in m'ost of the States) left the
constitutional constituencies just as they
stood before. In conformity with the
Constitutions, as last modified by those
Conventions, each of the States was
driven away, and denied all participation I speedily provided with a complete gov-
in framing and proposing these so-called eminent, consisting of a legislative, ex-
amendments! Was this a constitutional ecutive, and judicial department. It was
mode of proposal? I say it was an un- by the Legislatures thus formed that tne
constitutional mode, and that the pro- J 13th^Amendment to the Constitution of
posal was ah initio, null dnd void.
But how stands the ratification of these
so-called amendments? To say nothing
about the duress of bayonets and Con
gressional dictation, under which the
ratification was forced through the rati
fying bodies in the ten Southern States,
the great question is, who were these
ratifying bodies? Were they Legisla
tures of the States? They were not.—
They were the creatures of notorious and
avowed Congressional usurpation. They
were elected not by the constitutional
constituencies of the States, but by con
stituencies created by Congress, not only
outside of the Constitution, but in pal
pable violation of one of its express pro-
tbe United States, abolishing slavery,
was ratified.
Since that time no change has been
made in the organization of any of these
States, with the co-operation or concur
rence of the constitutional constituen
cies. Only very small minorities of the
constitutional constituencies have co-op
erated in the work of reconstruction. It
is a notorious -and unquestionable fact,
that an overwhelming majority of them
in each of the States have been steadily
and unswervingly opposed to it, aud
have voted against it, whenever they vo
ted at all.
The clear result, in my judgment, is
that each of these States now stands de
visions. The suffrage or political power pare just as she was left by the action
— ’ ’ * ’ * *’ ^ 0 f her Convention in 1865, with a com
plete government, formed under the
Constitution of that year,, including a
Legislature which still constitutionally
exists, and is capable of assembling any
day, if it were only allowed to do so by
the withdrawal of the bayonet. Bat she
stands de facto suppressed, by a govern
ment originated and imposed on her by
an external power, and supported alone
by tbe bayonet. Sucb a government is
the embodiment of anti-republicanism
and despotism. Under just such a gov
ernment Ireland is writhing and Poland
is crashed.
Is it not now demonstrated that the
bodies wliicb ratified the so-called 14th
and 15th Amendments^ in the name of
these ten States, were the revolutionary
of the States is not delegated to the Gen
eral Government by the Constitution;
but, on the contrary, its reservation by
the States is rendered exceedingly eni
pliatic by that provision of the Consti
tution which, instead of creating a con
stituency to elect its own officers—Presi
dent, Vice President and members of
Congress—adopts the constituencies of
the States, as regulated by the States
themselves, for the election of the most
numerous branch of their own Legisla
tures.
Ten of the ratifications, which were
falsely counted in favor of these mis
called amendments as ratifications by
Legislatures of States, were only ratifi
cations by bodies which had their origin
in Congressional usurpations, were elect
ed by illegal constituencies unknown to products of external force and fraud, dis-
the Constitution of tbe United States or I placing the true Legislatures which alone
the Constitutions of the States, and were could have given a constitutional ratifi-
organized aud manipulated under the
control of military commanders who
claimed aud exercised the jurisdiction of
passing upon the election and qualifica
tion of their members. Can these joint
products of usurpation, fraud and force
be palmed off as Legislatures of States?
cation ?
These so-called Amendments, then
have been neither constitutionally pro
posed nor constitutionally ratified.—
How can they form parts of tho Consti
tution ?
A successful answer to this question
Can ratifications by them be accepted, as would long ago have brought that peace
ratifications by Legislatures of States?— and harmony which can never come from
Man it please the Court: I know full
well that if your Honor is not superior
<to the average of poor human nature
you will find It difficult, if not impossible!
do give my defense in this case an im
partial consideration, and an honest
.decision. Tho prosecution against me is
founded on the course which I took in
the recent political election, which re
sulted in a victory for my party, and a
defeat for yours. It is also directly in
the line of an assault which was lately
made against me in tbe newspapers, by
: the official bead party in the
State. I, therefore, recognize in this case
& political prosecution, ju*t as distinctly as
I recognize in my judge a most zealous and
determined political opponent. Yet, sir,
there are other considerations whiclieucou
rage mo to hope that I may obtain, even
from you, that decision which is deman
ded by. justice and by tbe laws. From
the personal knowledge of you, which I
have acquired since the beginning
of this trial, I have discovered that you
are a man of decided intelligence ; and I
am told that you are a man of courage.
I am also told that you, yourself, have
been, in Borne instances,a victim of politi
cal persecution, and object of unjust oblo
quy. Surely, such arnan, with such an ex
perience ought to give a fair bearing to one
whose only fault is not any wroDg which he
has committed against tne laws, but tbe
damage which he has inflicted upon a
political party. My greatest encourage
ment, however, is derived from my con
fidence in the lawfulness of my conduct,
aud the power of truth. To troth,
bravely upheld, belongs a triumph which
cannot be defeated, nor long delayed,
not even by the intensest prejudices of
partisan strife. I am strengthened, too,
in the advocacy of truth on this occasion
by the consciousness that, in defending
myself, I shall be but defending princi-
pics which are dear to every American, 1 zation-
of
Can falsehood thus be converted into might overbearing light. Instead
truth by tbe thimble-rigging of Presi- giving such an answer, tbe authors of
dential proclamations? These bodies these measures have sought to drown rea-
were, indeed, setup by their usurping son and argument in clamorous charges
creators, as Legislatures for aud ovei• of violence and revolution against the
States; but until the known troth of re- victims, not the perpetrators, of those
cent history can be blotted out by the
mere power of shameless assertion, they
cannot be recognized as Legislatures of
States. The Parliament of Great Britain
is a Legislature for and over poor down
trodden Ireland; but what Irishman will
ever recognize it as the Legislature of
Ireland?
The false, Spurious and revolutionary
crimes.
But an answer has at last been attemp
ted from an unexpected quarter. Strange
ly enough, it comes from one who has
greatly distinguished himself by the vig
or and ability with which he has de
nounced the whole scheme of reconstruc
tion as a revolutionary usurpation and
nullity. And, still more strangely, he
character of these ratifying bodies is ren- adheres to that denunciation, while now
dered still more glaring by the fact, that
supported by tbe bayonet, they subverted
or rather repressed the true, legitimate
Legislatures of all the States where re
construction was applied. That such
arguing that these so-called amendments,
the creatures and culminating points of
that reconstruction scheme, are valid
parts of the Constitution. Such a con
clusion from such a beginning! And
Legislatures existed in these States, aud yet he is hailed by liis new allies as a very
are indeed still existing, is demonstrable Daniel come unto judgment. They were
from the facts viewed in the light of either in a sore strait for an argument.
of the two theories of secession—that of
its validity or invalidity. On either
theory the seceding States remained
States. On the one theory they were
States out of the Union; on the other
they have remained all the while States
in the Union. The Supreme Court of
He says these so-called amendments
have become parts of the Constitution,
because they have been proclaimed as
such by the power which, under the Con
stitution, has the “jurisdiction” to pro
claim amendments.
There has been much said, sir, about
the United States, in the recent case of issues that are “dead;” surely here is one
White vs. Texas, speaking through Mr. that is not only alive bat very lively. Let
Chief Justice Chase, held that secession Americans hear and mark it! The Con-
was invalid, and that the States which J stitution of the United States can be
bad attempted it remained and still are j changed, can be subverted by Presiden-
States in the Union. I tial proclamation !! I once knew a man
A State is not a disorganized mass of whose motto was that a lie, well told, was
people. It is an organized political body.
It must have a Constitution of some sort,
written or traditional Being an organ
ized body, it must have a law. of organi
zation or composition or Constitution,
better than the truth, because, he said,
truth was a stubborn, unmanageable
thing, but a lie in the hands of a genius
could bo fitted exactly to the exigencies
of the case. But even he admitted that
defining the depositary of its political the lie must be well told, or it would not
power. Where there is no such constitu- serve. If it should appear to he a lie it
tional or constituting or organizing or would be turned from a thing of power
fundamental law, there can he no organi- into a thing for contempt. There has
" -no State. These ten States then, been progress, sir, since that man taugbt.
mwm. '■'J ixiuciiuitu, ; zation—no Mate, xnese ten estates men, ueen progress, sir, since tuatmantaugnt.
because they he at the foundation of the i which seceded or attempted to secede (as It is now discovered that a known, proven
whole fabric of American constitutional |
liberty. Nor, sir, unless I am mnek
mistaken in the estimate which I have
formed of your character, will you listen
to my defense any the less favorably
because of the fraukuess and boldness
with which I shall present it.
I am accused under the Enforcement
Act of Congress.
My first position is, that this whole act
is not a law, hut a mere legal nullity.
It was passed with the professed * ob
ject of carryiug into effect what are called
the 14th aud 15th Amendments of the
Constitution of the United States, and
depends on their validity for its own.
These so-called Amendments are, as I
shall now proceed to show, not true
Amendments of the Constitution, and do
not form any part of that sacred instru
ment. They are nothing but usurpations
and nullities, having no validity them
selves, and therefore incapable of im
parting any to the Enforcement Act or to
any other act whatsoever.
I take occasion to say, that I regard
the 13th Amendment, abolishing slavery,
as clearly distinguishable from the 14th
and 15th so-called Amendments, in the
manner both of its proposal and of its
ratification. The contrast between it and
them will contribute to make their in
validity all the more apparent It is
true, that when the 13th Amendment
was proposed, ten States of the Union
were absent from Congress ; but their
absence was voluntary, and therefore did
not affect the validity of the proposal.
It is true, also, that the Legislatures
which ratified it for these ten States had
their initiation in a palpable usurpa
tion of power on the p»rt of the
President of the United States; yet
the one theory or the other may be held),
have all the while had Constitutions. In
point of fact, each of these has ever been
a written Constitution, giving tbe ballot
to defined classes of citizens who are
known as the constitutional constituency
lie is as good as the truth, provided it
can only get “proclaimed” by a power
having “jurisdiction” to proclaim it!! I,
sir, know of no power—either on the
earth, cr above it, or under it—that has
‘jurisdiction” to “proclaim” t.trs ! J—
of the State. This constitutional consti- Nay, sir, I know of no power which has
tuency is entrusted by each of these Con
stitutions with power over the Constitu
tion itself, in modifying or changing it,
and of course in modifying or changing
the organizations or compositions of the
constitutional constituency. This is the
depositary of the highest political power
of the State. Any chapge made in the
Constitution or organization of the State,
jurisdiction to proclaim amendments to
the Constitution. According to my read
ing of that instrument, amendments
constitutionally proposed “shall be valid
to all intents and purposes, as part of
the Constitution, when ratified by the
Legislatures of three-fourth of the seve
ral States, or by Conventions in three-
fourths thereof, as the one or the other
or in the composition of the constitution- mode of ratification may he proposed by
al constituency, as it may exist at any the Congress.” The ratification by three
time, without the concurrent action of the fourths of the States, acting through
constitutional constituency itself, is rero- their Legislatures or their Conventions,
tution. It is disorganization. It is the 1 “ ’
subversion or suppression (as it may prove
permanent or temporary) of one organi
zation and the substitution of another.
It is the abolition (permanent or tempo
rary) of the old State, and the introduc
tion of a new one.
sets the seal of validity on the amend
ment and makes it a part of the Consti
tution. Nothing else can do it. It must
be a true ratification by a true Legisla
ture, or a true Convention of the State.
A false ratification by a true Legislature
of the State will not do. A true ratifica-
Each of these ten States, in 1865, at tion by a spurious Legislature will not
the close of the war, being then a State, j do. The validity of the amendment and
had a Constitution and a constitutional its authority as a part of the Constitu-
constituency linked back by unbroken tion, are made to depend upon the histor-
succession to the Constitution and con- ic truth of its ratification as required
stitutioual constituency as they existed j by the Constitution. Proclamations of
before secession. Secession made no falsehoods from Presidents, or from
,. _ , , — Constitution itself. The
tbe Confederate States instead of with 1 validity of the Constitution in all its
tue United States as its Federal head, is | parts depends upon the facts of their
wholly immaterial to the present purpose, j history.
On the oue theory it was simply void, j But, according to
:uiu left the organization of the State, the j the President of the ^
Constitution, and the constitutional con- subvert the whole Constitution
United States can legally convert him
self into an autocrat by his own procla
mation. Theories are quickly put into
practice in these days. Let the country
beware!!
We are also told by this new Daniel,
not only that the usurpation has become
obligatory by its success, but there is no
hope of getting rid of it; for he says it
cannot be changed without another
amendment, ratified by three-fourths of
the States, and that there is no prospect
of getting these three-fourths. Wonder
ful! Why, he himself has taught us
that the whole thing may be accomplished
by a Presidential proclamation. We
have only to elect a Democratic Presi
dent, and let him “proclaim” that a new
amendment, abolishing the 14th and
15th, has been duly proposed and duly
ratified; and the thing is done. That,
sir, would be tbe way taugbt by this new
light; but it would never be my way. I
do not propose to walk in the ways of
falsehood. I prefer truth; because it is
nobler, grander. I believe also that,
when it is supported by true and bold
men, it is always more powerful. My
way would be to elect a Democratic
President; and let him treat the usurpa
tion as a usurpation and a nullity, and
let him withdraw the bayonet, and “pro
claim” that the revolutionary govern
ments in these ten States would not be
supported by him, but that tbe constitu
tional Republican governments which
now exist here would be left free to rise
from their state of forcible repression,
and do their natural and legitimate work
of true restoration, real peace, sincere
and cordial fraternity. Tbe whole prob
lem is solved by the simple withdrawal of
the bayonet. -'
I have now shown that the 14th and
15th Amendments do not form any part
of the Constitution; and thus have made
good my first position, that the whole
Enforcement Act, which depends solely
upon them for its validity, is not a law,
but a more legal nullity. '
My second position is that, eyen if the
so-called 14th and 15th Amendments
were valid, yet all those parts of the En
forcement Act claimed as applicable to
my case are utterly “outside” of them,
aud (being confessedly outside of the
Constitution, apart from them} are un
constitutional, aud not binding ns laic.
The 14th Amendment, and the small
part of tkeEntorcement Act relating to
it, have no relevancy to this prosecution,
aud I shall say nothing further about
dtaiffid# Jdoq tx t'i j» ga
Those parts of the Act claimed as ap
plicable to my case rests solely upon the
15th for their validity; and in order
to see whether they are outside of it or
not, it becomes necessary to know wbat
are the terms and extent of that amend
ment.- v •
The effect of its terms is strangely
misapprehended. It seems to be regard
ed as a thing which, by its terms, secures
the right of suffrage to the negro, and
empowers Congress to enforce that
right. This is a total and most danger
ous mistake. Here is the amendment-.
It- is not longer than the ftist joint of my
little finger:
“Section 1. The right of citizens of
the United States to vote shall not be
denied or abridged by the United
States, or by any State, on account of
race, color, or previous condition of ser
vitude.
“Sec. 2. The Congress shall have
power to enforce this article by appro
priate legislation.”
This is the whole cf it. Now, sir,
defy refutation, when I affirm that, by
these terms, the right of suffrage is not
conferred upon nor secured to any jier-
son or class of persons whomsoever.
The whole is simply a prohibition on
the United States and the several
States. Tbe United States, in legislat
ing for the District of Columbia or a Ter
ritory, and the several States in regulat
ing their suffrage, each for herself, are
prohibited from denying it to anybody
or abridging its exercise on either one of
the three grounds—race, color, or previ
ous condition of servitude—but are left
perfectly free to abridge it or deny it on
any other ground whatsoever—sex, female
or male, ignorance or intelligence, pov
erty or wealth, crime or virtue, or any
other of an innumerable multitude of
other grounds. In point of fact, the right
is denied both by the United States and
by each one of tbe several States, on many
of these other grounds; and the denial is
enforced under heavy penalties, not only
by the laws of the States, but by this
very Enforcement Act itself. To say that
the right is conferred on or seenred to
anybody, because it cannot be denied for
ony one or all of three reasons out of an
indefinite number of possible and usual
reasons, is simply absurd. As well say
that a plat of ground is fenced or secured
from intrusion by putting a wall on one
of its many sides, leaving all the other
sides perfectly open. A right is not con
ferred or secured by a law, when it can
be denied without a violation of that law.
This brings me to the crucial test of
my second position. Whether. I have
violated any provisions of the Enforce
ment Act or not, it is at least certain that
I have not violated the 15th Amendment,
It is affirmatively proven, by the testi
mony of the two prosecutors in this case—
the two negro managers of election—that
I did not object to or in 'any manner in
terfere with any vote on the ground of
either race, color or previous condition of
servitude. It is manifest, then, that if ]
have violated any part or parts of the Ea
forcement Act, such part or parts are
“outside” of the Amendment and unau
thorized by it; since I have not violated
the Amendment itself. I have not violated
theAmendment, even if its prohibition
. reached private citizens, instead of being
confined, as it plainly is, to the United
States and the States severally.
Ike truth is, that far the gi’eater part
of the Enforcement Act is “outside” of
the Amendments which it professes to
enforce. This act presents another live
and very lively issue to the people of this
country; and already are the thunders of
opposition heard from Republican as well
as from Democratic quarters. Under the
pretense of restraining the United States
and the several States from denying or
abridging the right of suffrage on account
of race, color or previous. condition of
servitude, this act takes control of the
general and local elections in all Dip
ties levelled, not against the United States
or the several States, or their officers
by whom alone the 15th Amend
ment can possibly be violated, but against
private citizens. The Alien and Sedition
Acts, which by the power of their recoil,
exterminated their authors, were not
equal to this act either in the nakedness
or the danger of their usurpation. If
this act shall prevail and abide as law,
then our heritage of local self-government,
lost to us, will pass into history, and there
standout forever a glory to the noble sires
who wrung it from one tyranny, and a
shame to the degenerate sons who sur
rendered it to another.
My third and last position is, that,
even* if the Enforcement Act we e valid
in all its parts, yet I have not violated
any one of them. I am accused under
its 5tli and 19th sections.
The 5th provides a penalty against
“preventing, hindering, controlling or
intimidating, or attempting to prevent,
hinder, control or intimidate” any person
from votiug “to whom the right of suf
frage is secured or guaranteed by the 15th
Amentment. ” I have already demon
strated that the 15th Amendment secures
or guarantees the right of suffrage to no
body whomsoever. It is impossible,
therefore, that I am, or that anybody
ever can be, guilty under that section.
But again; the testimony utterly fails
to show that I interferred in any way
with the voting of any person legally
entitled to vote, or indeed, with the
voting of any person whomsoever. It
was incumbent upon the prosecution
to show what person, if any; and that
they were persons entitled to vote. The
Enforcement Act itself inflicts a penalty
on all persons who vote illegally; and, of
course, cannot intend to punish the pre
vention or hindrance of illegal voting.—
The attempted proof, as to my interfer
ence with voters, relates to four persons
only. It fails to show that either one of
the four was a person entitled to vote. It
fails to show that three of them did not
actually vote. It fails to show that any
one of them offered to vote, or even de
sired to do so. It fails to show that any
one of them heard me make a single re
mark, saw me do a single act, or was even
in my presence from the beginning to tbe
end of the three days’ election.
As to the remark which I made to a
small crowd, about prosecuting all who
should vote without having paid their
taxes, I have this to say: In the first
place, it is not shown who composed that
crowd, nor that a single one of them was
a person entitled to vote. In the next
place, the remark was a lawful one; for it
was simply the declaration of an inten
tion, not to interfere with legal voters,
but to prosecute criminals; and therefore
cannot bo tortured into a threat, in any
legal or criminal sense of that word, i
threat, to be criminal, must be the deela
ration of an intention to do some unlaw
ful act; and it never canJoe unlawful to
appeal to the laws.
I pass to the charge, under the 19th
section, that I interfered with the mana
gers of election in the discharge of their
duties, by causing their arrest under ju
dicial warrant. That part of the 19 th sec
tion which is invoked against me is in
these words: “Or interfere in any man
ner with any officer of said elections in
tLe discharge of his duties.”
My first answer to this charge is, that
the managers were arrested, not in the
discharge of their duties, but in the vio
lation of one of the most important of
them—one prescribed not only by tbe
Constitution of the State, but by this
very Enforcement act itself; for tbe act
made it their duty to reject all illegal
votes, and provided a penalty for receiv
ing them. These managers had received
and were still receiving the votes of per
sons who had not paid their taxes of the
year next preceding the election, as re
quired by the Constitution of this State.
The testimony shows that this fact was
fully proven and not denied by them, on
the commitment trial before the magis
trate. The reply to it then was, and
now is, not a denial, but a justification,
on two grounds. One of these grounds
was, that the oath which they had taken,
uuder the Akermau Election act, required
them to let every person vote, who was
of apparent full age, wab a resident of
the county, and had not previously voted
in that election. They said thenand it
is -now said again here, that they could
not inquire iuto the non-payment of taxes
or any other Constitutional disqualifica
tion for voting, except only non-age, non
residence and previous voting in that
election: And yet, a man who was of
full age, and a resident of the county, and
who had not previously voted, was exclu
ded by these same managers, on the
ground that he was a convicted felon.—
Their own action in excluding the felon
is utterly inconsistent with their construc
tion of the obligation of their oath. The
oath, as construed by them, and now
construed here by the prosecuting attor
ney, is in plain conflict with tbe Consti
tution, and is, therefore, void, and could
not relieve them from their Constitution
al duty to exclude all who had not paid
their taxes. The first ground of the man
agers’ justification therefore fails.
Their other ground was, that the unpaid
tax of those -whom they had allowed to
vote without payment of taxes, was only
poll tax, and that the poll tax had been
declared by an act of the Legislature to
be illegal and unwarranted by the Con
stitution, and its further collection sus
pended.
The fact that it was only poll tax
does not appear from the evidence be
fore your Honor, but I admit it to be
true. I did not come here to quibble.—
I am here to justify my conduct under
the law, on the truth as it exists,
whether proven here or not. My
answer is, that this declaratory act of the
Legislature is false, unconstitutional, null
and void. The act is but the opionion of
the Legislature, concerning the constitu
tionality of a previous act of 1869, im
posing the poll tax for that year. That
act is before me, imposing a poll tax of
one dollar per head “for educational pur
poses” using the very words which are
used by the Constitution itself in defin
ing the purpose for which poll taxes may
be imposed. Now, sir, the question
which I ask is, what is it that makes this
act “illegal” or unwarranted by the Con
stitution? Surely, it is not made so by
tbe subsequent declaration of the Legis
lature, put forth just before the election,
to serve a palpable, fraudulent, party
purpose.
The Legislature is not a Court; but on
the contrary it is expressly prohibited by
the Constitution from exercising judicial
functions, and its declarations concerning
the constitutionality of Legislative
acts, have no more authority than those
is that reason ? It is that the Consti-
tion limits the imposition of poll pf a '
to educational purposes; and that Jif 68
the poll tax in question was iniir'
there was no system of common scW/
or educational purposes to u-lnV.i -
could de applied. Therefore thev^
its imposition was.“illegal and
ranted by tbe Constitution.” Tliev
it was unwarranted by the Constitutin';
to provide the money before “ - n
ing the schools, to which the S 2 '
was to be applied; that is to sav^S
only Constitutional «•<>«. - •>’ l ue
.to organic
to debt f CI
way
the schools, was to go
them ! I lack words, sir,"to
characterize the silliness of this 1 re**?
But, curious enough, the ConstihVtp/
itself took the very course, v;S fw
sapiant legislators declared to be-fitS
and unwarranted by the Constitution T
provided money and devoted it to the«
very Common Schools, which we»
in the womb of the future at the Pmerf
its adoption. It dedicated to that
pose the whole educational fund wl-il'
was then on hand. Therefore I *1
this declaratory act is not only false hll
is ^ the.very teeth of the Constitution
itself. Mark you, sir, it did not renad
nor attempt to repeal the poll tax- it
only■ suspended its collection. But T
say, if it had been a repeal in terms, in
stead of a mere suspension, it could
not change tho case, as to the right of a
person to vote without having paid the
tax. The Constitutional requirement i*
that “he shall have paid all taxes, which
may have been required of him, and
which he may have had an opportunity
of paying agreeably to law for the year
next preceding the election.” The poll
tax was required in April, 1869, and
continued to be required, up to the pas
sage of the aforesaid false declaratory
act-, in October, 1870—a year and a-half.
During all that period tax-payers had
“opportunity” to pay it. On the clay of
the election, then, any man who had not
paid his poll tax for 1869, stood in the
position of not having paid a tax, wkieli
had been required of him, and which he
had had very many opportunities of pay
ing agreeably to law. He stood clearly
within the letter of the Constitutional dis
qualification for voting. He stood also
within its reason aud spirit, for its true
intention was to discriminate against the
citizen who should not have discharged
a public duty for the year next preced
ing the election. Nothing but payment
could remove from him the character of
a public delinquent. Legislative remis
sion of the tax cannot serve the purpose,
for he still stands after that as a map who
has failed in a public duty. The most
that can be said for him is, that after the
repeal, the tax ceased to be required of
him; but the only material facts—that it
hail been required, and could have been
paid, but had not been paid—remain un
altered.
The managers, tlieii, iu receiving the
votes of persons who had not paid their
poll tax, were not in “the discharge of
their duties.” Whether they thought so.
is not the question. If they were really
wrong, then I was right, and surely, lam
not to be punished for being right. There
was no interference with them in the dis
charge of their duties.
But again: even if I were wrong in the
opinion which I entertained of their
duty, yet I did not interfere with them
unlawfully. The whole context of that
clause, in the 19th section, under which
I am accused, shows that the interference
contemplated is an unlauful interference;
especially the words which come im
mediately after it—“or by any of such
means or other unlawful means,” etc.—
This word “other” shows conclusively
that all the means contemplated were
only such as were of an unlawful charac
ter. This would be implied in constru
ing any penal statute, even if it were not
expressed; for the universal rule of con
struction for penal statutes is to construe
strictly against the prosecution, and lib
erally in favor of the accused. Is it pos
sible that any judge can have the hardi
hood to hold that it was the intention of
this Enforcement Act to impart to man
agers of election the sacred character of
Eastern Brahmins, making them too
holy to be touched even for their crimes?
Surely it was not intended to give them
greater sanctity than belongs to Peers of
the British Pariamant-, or to legislators
in our own country while engaged in leg
islation. Notwithstanding all the high
privileges accorded to them, all of these
are subject to arrest in any place, at any
moment, under a warrant charging breach,
of the peace or felony. Was it intended
to protect these managers from immedi
ate accountability for all felonies which
they might commit during three whole
days? Until this shall be held as the in
tention of the Enforcement Act, it is im
possible to maintain that I have violated
it in any particular whatever.
The Constitution declares that “the
right of the citizen to appeal to the
courts shall neve^ be impaired.” My
whole offense, sir, is this: that I appealed
to a court of competent jurisdiction. I de
voutly believed 1 was right in my opinion
of the law. I believe so now. But,
whether I was right or wrong in my opin
ion, who will dare to say that I was wrong
in testing that opinion, not by the strong
hand, but by appealing to a court ap
pointed by the Constitution for the very
purpose of deciding the question ? That
court decided that I was right; and the
“interference” which followed, sir, was
the interference, not of myself, hut of
the law, as expounded and administered
by a j udicial tribunal. Moreover, sir, the
decision of that tribunal stands as the
law of the case, until it shall be reversed
according to law. These managers were
charged with felony under the laws of
this State. Was it a crime forme to seek
a judicial inquiry into the truth or prob
ability of such a charge? I suspect, sir,
that my real crime, iu the estimation o£
my prosecutors, is, that the judicial in
terposition invoked by me had the effect
of preventing numerous repetitions of a
crime which would have done signal ser
vice to their political party.
If angry power demands a sacrifice
from those who have thwarted its fraud
ulent purposes, I feel honored, sir, in
being selected as the victim. If my sut
feriDg could arouse my conntrymen to a
just and lofty indignation against ta*-
despotism which, in attacking me, is bu
assailing law, order, and constitution
government, I would not shrink from 1
sacrifice, though my blood should he i‘
qnired instead of my liberty.
LonsvmLK, August 30.—The,
floor of Whitney, Brown & Co. s g
warehouse fell to-day, killing two 1
and one white man. The builduio ^
crushed to the cellar. l’wo P rou * u . ^
Main street merchants were throw i
the streets by the concussion.