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THE ATHENS GEORGIAN: DECEMBER 19, 1876.
THE LAW OF THE CASE.
Hon. Jerry Black on the
Louisiana Returning:
Board.
A THOROUGH VENTILATION OF T.1E
USURPATIONS PRACTICED—WHOSE
DUTY IS IT* TO COUNT THE
ELECTORAL VOTE.
I comply wilh the request to state
my 1 views concerning thei electoral
vote of Louisiana, in the hope that
I*inay thereby do some ^little service
to the cause of p ( eace, good order,
and honest government.
By the Federal Constitution and
the laws' of Louisiana, the people of
that State, in their primary capacity,
(and they only,) have a right to ap
point electors of President and Vice-
President. This power has been exe
cuted at the time, at the places, and
in the way prescribed by law. In
accordance with the universal rule of
all elective governments, the intent
and will of the whole people as a
body is spoken by the majority of
the ballots. They did appoint the
Tilden candidates. Their decision to
that effect, was -spoken by a large
majority, in the prescribed way, with
loud emphasis.
Nevertheless, certain State officers,
of notoriously bad character, have
conspired among themselves and
with evil-disposed persons, to hinder
and prevent the appointees of the
people from performing the duties
assigned to them by their constituents
—to orgaifze an electoral college
composed of other persons having no
authority except what they derive
from the fraudulent favor of the con«
spirators themselves. All this is done
to the intent and with the design
that a false vote, concocted by a
bogus body, may be sent up, cast
and counted as if it were (what it is
known not to he,) the true vote of
the State, certified to by the true
electors. If it be so received and
treated l»y the other States and their
representatives, then a rule is estab
lished which takes the power of
choosing our Chief Magistrate out of
the hands in which the Constitution
is supposed to have placed it, and
gives it, without reservation, to any
combination of swindlers who may,
by fraud or force, or accident, get
the machinery of a State government
into their possession. If this be sub
mitted to without opposition, and as
a wrong for which there is no legal
remedy, it is not probable we will
ever have an honest election again.
What I have here said, is a very
moderate statement of the case as
alleged by the Democrats of Louis
iana, and by other perfectly reliable
gentlemen, who have carefully inves
tigated the subject. They declare
that they can prove the averments
here made, with aggravations tend
ing to deepen very much the criminal
coloring of the acts done and contem
plated by their adversaries. I assume
that they will, in due time, furnish to
Congress and the country such proofs
as will justify these allegations and
establish their truth.
The question then arises whether
there is or is not some legal authority
by which this fearful wrong can be
remedied. If the Constitution has
not given to somebody the right to
arrest a fraud before it defeats their
known and legally-expressed will on
such a subject, then they have re
tained it on their own hands, and
they must compel obedience by their
own physical force, or else surrender
their right of self-government alto
gether. A construction of the law
which logically leads to such a con
clusion, cannot be the true one. In
England, a disputed title to the
crown can only be determined by
versy with the aid of the army. In
ordinary times, this notion might be
treated with derision. But our Pres
ident, for the time being, has super
intended State elections with the
bayonet, seated Governors who were
not elected, tumbled legislative
bodies out of their halls, and done
divers other things which show that
he has very curions views of his own
powers and duties. Still, it is not
likely that he will carry things to the
point of making war upon the people
lor electing Tilden, or upon their
representatives for refusing to count
fraudulent votes in favor of Hayes.
On the contrary, it is to be hoped
most devoutly that when Tilden is
declared by the proper authority to
be duly and constitutionally elected,
he will cease entirely from all lawless
meddling with the business, and re
spond favorably to our . earnest and
heartfelt prayer for peace. “Lotus
have peace.”
Those who desire to make this par
ticular fraud successful, and to estab
lish a precedent which will make
fraud omnipotent hereafter, take the
bold ground that any paper purport
ing to be a certificate of the electoral
vote if sent up to the President, of
the Senate, and by him opened in
the presence of both Houses, must
be taken as infallibly true—subject to
no scrutiny and open to no contradic
tion. This is in square conflict with
the uniform practice of the Houses;
it is inconsiscnt with the rules which
they have deliberately adopted for
the exercise of their power and the
performance of their duty on such
.occasions; it is opposed by the opin
ions of great leading men in the past
as well as the present generation ; it
has r. j warrant in the words of the
Constitution ; it is utterly at variance
with the reason of t’ e thing, and i
grossly violates the right of the peo
pie to he protected by their repre
sentatives against imposture and vil
lainy.
Tltp duty assigned to the President
of th^ Senate is very simple. The
certinpates lining sent to him, he
must Keep them, as he gets them, in
faithfjrc custody and close under seal
until the day of opening, and then he
must open them in the presence of
both Houses. When that is done,
his special function is finished. Be
cause he keeps the packages contaii
ing the certificates, and is authorized
to break the seals mi a day fixed, is
he, therefore, to pass upon their va
lidity and force the Houses to receive
and count them contrary to their
convictions of justice and truth? It
might as well he said that the mes
sengers who bring them up have this
kind of power.
The votes, being opened, shall then
be counted. The Constitution (foes
not say, in express words, by whom
the count shall be made. But the
rule of construction which gives the
authority to the Houses and with
holds it from the President of the
Senate, is very plain. Judicial power
is never inferred from the bestowal
of a ministerial duty. Whcu a writ
ten law requires evidence to be pro
duced, the weight and value of it is
always to' bo decided, not by the
officer or person who brings it, but
by the one to whom it is brought,
and before whom it is Jaid. Else,
why bring it at all ?
A habeas corpus law commands
that the sheriff shall bring the body
of the prisoner before the court or a
judge, together with the cause of his
detention, and requires that the pris
oner shall then be bailed, remanded,
or discharged, as justice may require.
By whom ? Certainly by the court,
and certainly not by the sheriff An
exeentor shall lay his accounts before
a court of equity, and they shall then
civil war. But surely our wise fore- J be confirmed, corrected, or modified.
fathers did not intend to put them
selves or us—their posterity—in that
forlorn condition. They certainly
meant that a spurious claim to the
presidency should be set aside in
some peaceable way by a judgment
whose authority all must respect, and
without a resort to the ultima ratio
regum,
In opposition to this view of the
case, there are those who seem to
expect that General Grant will take
it upon himself to settle the contro-
The statute docs not say by whom
the decree shall be made, but it is ab
surd to suppose that it can be made
by anybody except the chancellor.
Depositions taken in a foreign coun
try, under a commission or letters
rogatory, are by statute to be sent
under seal to the clerk of the court,
who shall open them in the presence
of the court whcu the cause is called.
Docs that give the clerk power to
pass judgment upon them? These
supposed cases are given for the
mere purpose of illustration, and they
show, by clear analogy, that the
votes of the States for President
and Vice-President are to be counted
by the Houses—counted in their
presence, in their sight and hearing,
under their supervision and control
—and truly counted according to
their judgment and conscience.
The right, power, and duty of the
Houses is to count the true votes of
the States only, which, of course;
covers and includes the duty of re
jecting false votes from their count,
if it be known that spurious votes
have been placed among .them by
accident or design. .
For certain reasons, which will be
given presently, it is plain to us that
in case of disagreement between the
two Houses concerning their duty to
count or reject a vote, the judgment
of the Senate must prevail in regard
to the Vice-Presidency, and that of
the House on the Presidency. Be
tz ■ 1
fore coining to that, however, we are
to consider upon whatgrounds either
House, or both together, can act in
rejecting a vote.
It is claimed that the certificate
of the State officers, if it he in due
form, imparts absolute verity—must
be taken as infallibly true, and can
not be questioned or disputed. This
is true, doubtless. Congress is not a
national returning board, and can
not sit to hear appeals from the re
turning boards' of the States—can
not re-judge the justice done by the
Slate authorities, or correct their
errors. The decision, if it be a de
cision, of the State authorities is ns
conclusive and binding on all the
world, iucl tiding Congress, as the
judgment of a court of last resort
upon a subject with’n its exclusive
jurisdiction.
Cong: ess is bou..d, therefore, to
count the Louisiana vote, unless some
fact, be shown against the certificate
which proves it to he not merely er
roneous, but void. If the vote comes
up from a body of men pretending to
be electors, but who, in truth, have
never been appointed as such accord
ing to the laws of the State, their
act must certain.)' be treated as a
nullity. Men cannot constitute them
selves electors, nor be constituted l»y
anybody else except the proper ap
pointing power. Suppose the power
of appointment to be in the legisla
ture. The legislature, in the pre
scribed manner and at the proper
time, makes its appointments by a
clear majority of its votes, which are
duly recorded and certified by its
officers. Yet, the Governor, not
only without the consent of the legiss
lature, but in dufiance of its expressed
will to the contrary, fixes up a differ
ent set of men as an electoral college,
and gets them to cast their vote of
the State. Is there an honest man in
the country who would be willing to
promote the object of such a proceed-
ing by counting the vote of such
pretended electors ? The case under
consideration is precisely analogous
to this. Here, the power to appoint
is in the people who have exercised
it: their votes are counted and re-
corded, decisively showing their de
signation of certain persons as their
appointees. But the Governor dis
honestly takes upon himself and
seven associates the duty of voting
for President in the name of the
State, If this ho not a mere bogus
college of electors, what would be ?
If these men can cast tlie vote of the
State, what is to hinder any other
eight men from doing the same thing?
The right of Congress to throw
out the vote of persons not duly
appointed, has never beeu denied in
the cases of Territories not fully ad
mitted as States, or of States sup
posed to be out of the Uuion as *a
consequence of their rebellion. It
you reject the votes of electors be
cause the State could not appoint a
fortiori, you must reject the votes of
electors whom the State could ap
point, but did not. And the princi
ple applies a multo fortiori to the
case of persons to whom the appoint
ing power expressly refuse I the trust
and bestowed it on others. Indeed,
no absurdity could bo more palpable,
and none could lead \o worse conse-*
quences than a decision that the vote
of a State must be takca as it is
by any set of persons who
claim to dojit without regard to the
authority which they hold, or the
source from whence they derive it.
If that principle prevails, what is to
be the predicament of things when
two or three or a dozen sets of
electors all claim the right to vote,
atid all send up their certificates in
apparently proper form, and all are
laid before Congress by the Presi
dent of the Senate?- 1 ' ^ li
lt will .certainly, not Us denied that
Congress may inquire : into the gen
uineness of any certificate produced
bV the president of the‘sc*nKfe. IF 1 (
is known to be a mere forgery, all
men of common integrity will say
with one Voice that it must not and
shall not be counted. That being
settled, let us see wliat'fbllows in the ;
case under consideration:
Forgery is the fraduleiit making or
alteration of a writing to the preju
dice of another’s right. If the return
ing board and governor of Louisiana
willfully, fraudulently, and falsely
make a certificate that certain per
sons therein named had a majority
of the popular votes, knowing the
fact to be otherwise, they bring them
selves literally within the definition.
The hooks on criminal law teach that
an indictable forgery is proved when
a paper, though signed by the hand
of the proper person, and not after
ward altered, is brought into con
tact with any trick or imposture
practiced by or upon the maker of it.
Thus, in a note for a thousand dollars,
signed by an illiterate man on the
assurance that it bids him to pay
only five hundred ; a will drawn con
trary to instructions and misread to
the testator ; a deed antedated with
the consent of both parties to affect
injuriously the rights of others—these
are held to be forgeries by all the
text writers on criminal law, from
Coke to Wharton. The judicial de
cisions, however, in England and
America are not uniform on this
point; and I admit the better opinion
to be that an indictment for forgery
cannot lie sustained without proof of
an actual false making of the paper,
in whole or in part, a simulation or
But this is not important now, and
will never become so unless the
guilty parties be prosecuted. The
question at present is whether a vote
known to be false and fraudulent
shall be received as a true one.
What weight or value shall be given
as evidence to papers concocted with
a predetermined intent to cheat? If
the evidence, which is laid before
Congress, that Louisiana voted for
Hayes shall be shown to have its con
ception, its birth, and its nurture in
mere iniquity, what; bon eat maW can
safely en^f^uun&lp A
fraudulent paper proves nothing; it
is a mere nullity, as corrupt in morals
and as void in law as • any fprgery
can possibly be.
The conclusiveness DfjytfiQj
cate lutada fin.ilegal l fornt ; l»y J the
proper State authorities is admitted'.
But that always , presupposes the
honesty of the act. A judgment of
the Supreme)Court is conclusive,
too; but any justice.of the peace who
knows it to have been corruptly ob
tained may j properly j cist it aside.
counterfeiting, which gives it the
appearance of being made by some
body who did not make it. But this
latter rule applies only to private
papers, and would hardly save the
Louisiana conspirators, <if indicted for
forgery in the fabrication of false
election returns. It lias never been
held that an official certificate, intend
ed for a fraudulent purpose, and
known to he false, is not a forgery.
An auditor of the treasury certifies
to a balance'in favor of a person whom
he knows to be not a creditor, but a
debtor of the government, with ins
tent to defraud the public; a justice
certifies that a'deposition was sworn
to before him by a person whom he
never saw ; the clerk of a court certi
fies to a false naturalization papers.
These ought to be, and would he held
for forgeries. A commissioner, super
visor, or inspector of election whose
duty it is to count the ballots at b
particular polling place frabricates a
certificate, signs and returns it in
total violation of what he knows to be
the truth ; how would he fare in a
count if indicted for forgery ? But
suppose the returns to be honestly
made to the central authority of the
State, where the Governor, Secreta
ry, or special hoard of canvassing
officers are required to aggregate the
returns, can they make a certificate
willfully falsifying the whole result
of the election without being guilty
offbgery? While I concede that
this technical question is not, in the
present state of tlie law, clear enough
to justify any dogmatism about it,
the conclusion is not unreasonable or
presumptuous that the canvassing
officers who did this thing, the Gov-
renor who participated in it, and all
other persons who encouraged or
aided them, are within the condem
nation which the law pronounces
upon forgers. I ought, however, to
add that I have not looked at the
criminal code of Louisiana. I have
taken it for granted that it contains
nothing inconsistent with the general
principle established in England by
the statute of Elizabeth, aud adhered
to in the other States of this Union.
The most solemn act of the executive
—a pardon, a patent or a commission
— loses all validity if it be tainted
with fraud. Under proof of any dis
honest practice any private deed and
every public record becomes as
worthless as a blank, no matter with
what solemnity it may have been
executed or how carefully attested.
All writings are obliterated and great
seals of State crumble into dust the
moment they are brought-into con
tact wi;h a con venous fact. This
applies to election returns as well as
to everything else
The principle which fences us
against knavery in matters of minor
importance will not fail us when an
attempt is made to cheat us by
whole.edu out of the right to lie gov
erned by a President of our own
choice. It has been applied to elec
tion certificates in cases precisely
analogous to this, Ouce upon a time
the majority in the House of Repre
sentatives depended upon the election
members in New Jersey.- The Dem
ocrats were chosen, but tli2 Whig
Governor of the State, tempted by
the opportunity which he had of
making a bold stroke for his party,
dishonestly certified the election of
the minority candidates and com
missioned them under the broad seal.
The commission, if it had any force
at all, was conclusive evidence of
their right to sit as members until
they were unseated upon a regular
petition and contest. But it was
fraudulent, and therefore void alto
gether. It was not'allowed to pre
vail for a moment. In Pennsylvania
a similar trick was tried in favor of
candidates for the Legislature known
to be defeated by means of a certifi
cate from the returning officers, pro
nounced by the Governor, the Secre
tary of the Commonwealth, and all
high authorities to be conclusive.
But being known to be a sham
and a falsehood, the right claimed
under it was resisted to the utter
most. -.Nobody now believes that
it was not rightly and legally treated.
But it may be denied that the
action of the Governor and the Re
turning Board is fraudulent. This
is a matter of fact not yet in shape
for full discussion. If the Hayes
elector?, the Governor, the return
ing board and other parties to this
transaction can prove that they added
up the vote and certified the aggre
gate result according to the truth as
it really was, or as they had reason
to believe it, then the Democrats
have no case. But if .they knew
what the result was, and yet wilfully
falsified it, that is a fraud per &e.
They not only did this, but they
greatly aggravated the guilt of the
act by founding it on pretenses
known to bo false in fact and insuffi
cient in law.
It is said that the returning board
is not bound to make a mere count
of the votes and ascertain what can
didates have a majoi*ity, but may sit
in judgment on the returns from
every parish, and certify the majority,
not as it actually is, bnt as in their
opinion it ought to be. To support
this they quote section 3 of the Lou
isiana election law, which no man
cau read without seeing that it was
passed by a corrupt Legi 8 l atln ^7
prevent the peoDle of the State f r J
turning out the party then occunvitw.
the State officers. ^ °
f A returning board certainly 0Hc ht
to have judicial or qttashj^
powers to a certain extent, to correct
the blunders o a superintendent, to
inquire whether a return from ’any
polling place is properly authenticat-
ed, to ascertain what votes have been
cast for any candidate- by persons
not qualified, and make the proner
deducti^^iw^utT©^ wh ; ch
may certianly be giyen to. State
canvassers. But it is not given to
the Louisiana board' by the section
referred to. They assert that it does
not give them the power to disfran-
chise all the inhabitants of any parish
in which there has been “ an act of
violence, riot, tumult, intimidation
armed disturbance,, bribery, or cor!
rupt influence.” Their jurisdiction,
as they now claim it, is that of the
highest criminal court, and is to be
exercised in ways totally prohibited
to all courts. They may try the
people of a whole parish at once, and
condemn them all on ex parte state
ments, without a hearing or notice
fur acts of violence committed by a
person unknown to them at any
pace within their borders at any
time in the indefinite past. A con
viction obtained in this way is inane-
diately followed by a sentence of dis
franchisement, which I need not say is
the most frightful penalty that can be
inflicted on a people struggling to
free themselves from the domination
of reckless knaves. This terrible
jurisdiction to doom and punish inay'
seem to be mitigated on the power,
tor the board is authorized to condone
the ottense when they think it lias
not materially changed the result
of the election.” But no clemency is
over extended to their political oppo
nents. The “ result of the election
; s always affected ’»by an act of vio
lence or fraud, no matter when, where
or by who n committed in a demo
cratic district, but tlie reverse is sure
to be held where the majority is not
democratic.
Will any man in the \v;orld may say
that a power like this may be held and
wielded by a returning board consis
tently with the fundamental law of
Louisiana, or any other free state?
No; for reasons too numerous to
mention. It usurps authority which
belongs exclusively to the courts; it
imposes the severest punishment,
without trial or evidence,-upon targe
bodies of men who are known to be
innocent of every offense, in defiance
of the state constitution, it refuses
the votes of qualified citizens, and
makes the right of suffrage a mere
mockery. Moreover, it flatly violates
that express provision of the federal
constitution which declares that “ no
person shall be disfranchised except
for rebellion or other crime, which of
course, means a crime of his own,
whereof he is legally convicted.
Bcsidp^tbat, this law does not ap
ply to the c^se of presidential electors,
ft is expressly confined to state,
parish, and judicial officers, to mem
bers of the assembly, and members
of congress. There is another and
totally different provision for can
vassing and- counting the votes for
presidential electors, which appears
to be in full force.
On the whole case the law and the
evidence, which is sure to come
through the proper committee, will
demonstrate this to be a monstrous,
unmitigated, palpable fraud upon
Louisiana and upon the whole Ameri
can people. It is not the vote of the
state, nor the. product of any state
authority legally exercised, but the
mere spawp of a criminal conspiracy.
It is impossible to see how congress,
or either house of cougress, can,
with its eyes open, receive this thing
and palm it off on the nation as a
genuine vote without becoming »
partaker in the crimes which gave it
origin, unless the law teaches a false
doctrine when it says that he who
knowingly utters a false paper is as
guilty as he who makes it.
But it is possible that the judg*
ment of the two houses upon this
subject may differ toto ccelo. The)
act, deliberate, and decide indepeud-
[CONCLUDED ON 7TH PAGE.]