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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.]