014 647 895 5
CONCLUDING ARGUMENT BY M. L. RICE, ESQ., BEFORE SELECT
COMMITTEE ON ARKANSAS AFFAIRS.
Mr. Chairman and gentlemen of the committee : It becomes nec-
essary for me to present some points in the case that have not already been
presented, from the fact that I appear peculiarly as the attorney of Mr.
Brooks. I am not like the gentlemen on the other side who occupy so dis-
interested a position that they do not know whom they represent, except
that they claim to be speaking for the public good, while they are advocat-
ing the overthrow of constitutional government and the establishment of
the uncertain results of revolution in its stead. I am not only the attor-
ney of Mr. Brooks, but I am his friend and one of his earnest partisans,
as I have been all through this matter, from the commencement of the
campaign to the present time ; and I shall speak from that stand-
point. I shall confine myself in the argument in the case to the testi-
mony in this record, and if I allude to a matter outside that is of such
public uotoriety that the committee can take judicial notice of it, I shall
call the attention of the committee to that fact, so that it may not be
mixed with my statement of the testimony.
Much has been said about the affairs of the South, and much cheap
prejudice has been sought to be raised against this investigation by re-
peating and re-repeating that the South has been afflicted with bad gov-
ernments, and the nation was getting tired of the manner in which
southern matters have been conducted. We often hear the remark that
the people of the Southern States ought to be permitted to manage their
own affairs. In these remarks the word " people " means the rebel ele-
ment, to the exclusion of every republican in those States.
ISTow I shall not discuss this question. I admit that the reconstruc-
tion governments in the South have not been what their friends expected
them to be, or what they ought to have been ; but there are forty-five
thousand republicans in Arkansas (as well as a large number of demo-
crats, who supported Mr. Brooks, and still, in their hearts, adhere to his
claims) who have never participated in politics other than to vote ; who
never had anything to do with the government of that State, and who
have never been in the least at fault in the mismanagement of its affairs;
and it certainly looks a little unreasonable for Congress to say to them
that, because they have suffered the inconvenience of a bad administra-
tion of their government under reconstruction, that therefore it will allow
them to be deprived of all lawful government, and hand them over for
their legal and political rights to the rule of an illegal, unauthorized,
self-constituted class of individuals, erroneously styled a State govern-
In the first place, I insist that if that were a good defense as to those
who had mismanaged their trusts ; if that were a reason as to them,
why the Government should withhold its powerful arm in the mainte-
nance of lawful government in that State, it could not be urged against
the client whom I have the honor to represeut, because not one single
error of that State administration can be laid to his charge, or one sin-
gle fault in it traced to any act of his ; and although he is an earnest
and zealous republican, and has always adhered to that faith, yet the
platform on which he ran, and the able and thorough canvass which he
made in favor of reform in the administration of State affairs, so im-
pressed the masses of the people of the State with the soundness of his
theories, and with the hope of better government under his administra-
tion, that three-fourths of the democratic party laid aside their feelings
of dislike on account of his republicanism, and almost hatred on account
of his long-cherished anti-slavery sentiments, and in the hope of securing
a good administration of State affairs which the character of his cam-
paign seemed to promise, supported him with an enthusiasm seldom
witnessed in a State election.
They adhered to Mr. Brooks, not only as against Elisha Baxter, but
they adhered to him as against one of their own men, as popular a man
as there was in the State, by the name of Andrew Hunter, who was put
in nomination for a short time; but the democratic masses refused
to take their support from Brooks and give it to Hunter, because they
were satisfied with Brooks's views of State policy, and hoped through it
to secure the general reform in State affairs which they desired. This
applies to the masses of the democratic party. There was about one-
fourth of the party, including in the number the supposed leaders and
politicians of the party ; the same men that inaugurated the Garland
movement, and are now its principal supporters ; the same men who
brought out Hunter for the purpose of defeating Brooks, and intrigued
with the Baxter leaders, and finally supported Baxter, after Hunter's
name was taken down ; the same men who carried the State of Arkansas
into rebellion in 1861. They never were for Brooks; they did not like
the plain, straightforward manner in which he proposed to administer
the State government. They wanted all the intrigue, all the maneu-
vering and the short-comings, errors, and corruptions about which they
had complained so much, but they did not want other parties to have
the fruits of them ; they wanted them all retained, with simply a trans-
fer of the government to them, without any reform in the manner of its
I take this occasion to say that, notwithstanding all the misrepresen-
tation that has attended this case, there is not an intelligent, honest
man in the State of Arkansas who ever doubted Mr. Brooks's capacity,
who ever doubted his integrity, or the soundness of his principles on
I will say further, that although he has been robbed of the fruits of
his victory, and been unlawfully and fraudulently deprived of the high-
est right which a citizen could claim from the voice of the people, ex-
pressed at a State election, yet I boldly assert that he was never guilty
of a dishonest or dishonorable act in securing that election, and has
never since taken an unlawful or dishonorable step to secure the fran-
chise of which he has been robbed ; he has, however, pursued the right
with which the people had clothed him, in order to perform a duty which
he believed devolved upon him by reason of his election by the people
of that State.
THE ISSUE PRESENTED BY THE RESOLUTIONS.
Under the resolution which we are considering, the first proposition,
as I understand it, is to ascertain who was elected governor of Arkansas
at the election in 1872. The next proposition is for the committee to as-
certain and report whether there was a republican form of government
„ in the State of Arkansas; and the third proposition is to report who should
be recognized as governor. That seems to be the issue which we are
here to-day, and have been for several days, discussing, and which the
committee has to decide in its report. I understand that it is stated that
the committee cannot go into any matter which has arisen since its ap-
,- poiutment. Now, that is a system of special pleading inconsistent with
the magnitude of this case. As to the question of who is elected gov-
ernor, it is true that that was anterior to the appointment of this com-
mittee; but, based upon that, comes the question whether there was a
republican form of government there at that time; whether there was
afterward, and whether there is now; and incidental to and dependent
upon both of these, is the question as to who should be recognized as
governor of the State. If any event has transpired since that time
which makes it necessary to inquire iuto the claims of some other per-
son, that inquiry is certainly within the purview of the resolution under
which this committee is acting. But the House, at its last session, ex-
tended the time of this committee, and, of course, it extended the inquiry
over the period of time to which that exteusion applied. Therefore I
take it that we are investigating this whole case. I know that the other
side (and I concede to them the right, because I never was oppressive to
the poor) has a right to stand upon any quibble, however contemptible
in law it may be.
MR. BROOKS WAS ELECTED GOVERNOR.
As to the question of whether Mr. Brooks was elected governor of the
State, it has been said, since we have been before this committee, that
that might be a disputed question. If it is disputed here, it is the first
time that it has ever been disputed since the close of the polls at the
election in 1872. No human being whom I ever heard of ever claimed
that Mr. Brooks was not elected. The litigation in this whole case,
from the beginning to the end, has been on the assumption that
Mr. Brooks was elected, and Mr. Baxter's pretense of being gov-
ernor was only on the ground that he had been couuted in. He
was thwarting Mr. Brooks in presenting and establishing his right
to the office. Mr. Baxter has beeu a witness in this case, but he never
claimed in his testimony that he had been elected governor. In every
petition, in every statement, in every correspondence which this record
develops there is not an assertiou or an insinuation that, in poiut of
fact, Baxter was elected governor of the State of Arkansas. The gen-
tlemen on bath sides must excuse me for omitting the word governor
before the names of Mr. Brooks or Mr. Baxter. I am too feeble to use
complimentary titles, especially toward one man who has been robbed
of the title for two years, and to another man to whom the title should
never have been applied. I therefore shall call them Brooks and Bax-
ter, without meaning any disrespect to either.
I listened to Mr. Baxter himself here the other day, although I was
then in considerable pain, on purpose to see whether there was really
enough, even in the death-throes of a played-out politician, to make one
assertion consistent with his pretensions, and I found that he never
claimed that he had been elected governor; he never intimated it ; he
simply claimed that he held the office by that sort of royal prerogative
which arises from his having been couuted in ; and that there was no
tribunal on earth or known to men by which the matter could be in-
vestigated. He said that if the question could have been brought up
in a legal manner, and Mr. Brooks could prove before a tribunal that
had jurisdiction that he was elected, he (Baxter) would make reparation
to him ; but, if Baxter is carefully traced through all his dubious ways,
it will be seen that, in his opinion, (excepting his counted-in and purchased
legislature,) there is not a tribunal on earth which has that jurisdiction (?),
and the question can only be settled at the great day when the secrets of all
men are made known ; but I apprehend that, after Elisha Baxter has
atoned for the errors and wrongs of having robbed Mr. Brooks of this
office, aud for the despotic, lawless, and fraudulent course which he has
pursued to deprive him of it, he will have but little left with which to make
a personal atonement to Mr. Brooks. The testimony in this case shows
that a geueral conspiracy was entered into previous to the election of 1872,
for the purpose of installing Baxter and those who ran on the ticket
with him, regardless of the number of votes received ; that iu pursuance
of that, one of the first steps taken was disfranchisement after registra-
tion 5 the striking off the registration-books, after the registration was
closed, the names of thousands of legal voters of the State of Arkan-
sas, which striking off was purely arbitrary, and for no other reason
than that the voters whose names were thus struck off would vote for
Mr. Brooks. The whole election-machinery was in the hands of
Baxter. After that was done, still a large majority would be for
Brooks, as was apparent from public sentiment. The entire country
was for him. The town and the little circles of seven-by-nine poli-
ticians were for Baxter ; but the great mass of the people, whether
rebel or Federal, whether Union or secession, whether democratic
or republican, who wanted a peaceable, honest, and strong govern-
ment, were for Brooks. Therefore it was necessary to do something
else that would defeat Brooks. They next resorted to the stuffing
of the ballot-boxes at the election, (I distinguish between that and the
stuffing after the polls were closed.) This testimony shows that in
some instances they had voting-places where the tickets were handed
in at a window which was so high from the ground that unless a mau
was as tall as I am, he would have to send up his ticket in the notch of
a stick. When the ticket was taken from the stick, it it were a Brooks
ticket, (and the tickets were so marked that they could be distinguished
from each other, and if they were not so marked, they would open and
read them,) they would throw the Brooks ticket into the stove, and take
a ballot from a pile of Baxter tickets which they had on the table, and
put it in the ballot-box, so as to have the number of ballots and the
poll-books correspond. The testimony is further (and I only speak of a
few instances which are shown in the record) that in another case the
ballot-box was arranged, and a certain number of ballots — say fifty —
were put in the box, all for Baxter, before the polls opened, and then
when the polls closed, a corresponding number of fictitious names was
added to the poll- book, so that they would tally ; and there were those
fifty fraudulent votes to be counted for Baxter. Another very striking
instance occurred in which they pretended to be very magnanimous, and
agreed that the Brooks men might all vote first. They were going to be
very polite to them, and they voted until the count reached to 350. Just
as they got to that number the judges looked at their watches and as-
certained that it was dinner-time. These officers that were taking the
vote were very exclusive, nobody else was allowed in, and in some in-
stances even the United States supervisor was excluded. They retired
for dinner, and, when they had gone, the ballot box with the 350 Brooks
votes was taken off by one of their number selected for that purpose,
and another box exactly the counterpart of it was introduced, contain-
ing 350 Baxter votes. After dinner the Baxter votes were received on
top of those that were already in, so that they finally counted all the
Brooks votes for Baxter. That is a sample of the beautiful expression
of the will of the dear people.
Another instance of the changing of votes was by means of an old
paper hat-box, in which they had a lot of Baxter tickets, and these
tickets were taken out and substituted for Brooks tickets in the counting
of them. This and like frauds, sufficient to take a man three days to
describe, have been proved, and yet not one-tenth of the instances of
fraud that occurred at that election have been attempted to be proved.
Eiiough, however, were proved to establish this case.
THE EIGHT TO THE OFFICE DERIVED FROM RECEIVING A MAJORITY
OF THE VOTES.
Notwithstanding all the disfranchisement, all the stuffing of the bal-
lot-boxes, and all the frauds in receiving and changing ballots during
the day of election, yet, when the contest was over and the polls were
closed, and the grantors of the franchise of the office of governor had
done and completed all which it was necessary for them to do, and all
that they were capable of doing, to convey and vest that franchise,
Mr. Brooks, by reason of having received a large majority of the votes,
became vested of that franchise, and became and was from that moment
the dejure governor of the State of Arkansas, with the right of occu-
pancy of the office postponed until the end of the term of the then
incumbent. An office derived from an election is a franchise ; it is an
incorporeal hereditament which cannot stand in abeyance for a single
moment, but vests the very moment the franchise is cast, which, in the
case of an elective office, is the closing of the polls ; it must vest in-
stantly, although the enjoyment of it may be postponed, as, in the case
of a person dying intestate, the estate passes to his legal heirs at the
moment of his death; although au only son upon whom this estate is
cast may be years in establishing his identity by proof and showing that
he is the person entitled to the estate, yet, in contemplation of law, the
estate became vested in him from the moment that the intestate ceased
to exist. So, in this case, however long Mr. Brooks may be fraudulently
or forcibly kept from the enjoyment of the office, yet the franchise vested
in him when the acts of the grantors were completed, which was at the
closing of the polls on the night of the election. But we are not left to
conjecture, or even argument, upon this question ; it is settled by high
authority outside of our own State, and in our State, by a decision of
the supreme court, which is law unto us, the question is settled beyond
controversy. I read from State vs. Johnson, (17 Ark., p. 407.) This was
a case of quo warranto brought in the circuit court by the prosecuting
attorney against Johnson, requiring him to show by what authority he
exercised the office of mayor of Fort Smith. He had run for the office
against Rogers, and claimed to have received the most votes; the judges
of the election gave him the certificate of election, and he was commis-
sioned ; Rogers contested the election before a board created by statute
for that purpose, which board decided in favor of Rogers, and he was
commissioned and entered upon the duties of the office. It was not
claimed that the decision of the board who decided the contest was con-
clusive, but the case was treated as one which the courts must finally
decide, and the court, on page 413, use this language :
But at last, alter all this has been done, and the party thus commissioned, he derives
his authority as an officer, not from the proclamation of the judges ; not from the cer-
tificates of the election ; not from the abstracts made out for the governor, aud not
from the commissiou, but from the free choice and election of the people — not the
people in the popular sense of that word, but the people who are competent and
qualified electors when the votes were polled and the election held.
4th Selden, page 07, People vs. Cook. The court decided as follows,
(see page 82 :)
It is by the popular expression by the voters through the ballot-box that a title is
derived to an elective office. The certificate of the board of canvassers is mere evi-
dence of the person to whom a majority of the votes were given. The certificate may,
indeed, be conclusive in a controversy arising collaterally or between the party holding
it and a stranger, but when this proceeding is instituted in the name of the people it
loses its conclusive character, and becomes only prima-faBie evidence of the right.
The same question is decided in California, in People vs. Holden, 28
California. The court decided as follows, (see page 129 :)
Title to office comes from the will of the people as expressed through the ballot-box,
and they have a prerogative right to enforce their will when it has been so expressed
by excluding usurpers and putting in power such as have been chosen by themselves.
To that end they have authorized an action to be brought in the name of the attorney-
general, either upon his own suggestion or upon the complaint of a private party,
against any person who usurps, intrudes into, or unlawfully holds or exercises any
public office, civil or military, or any franchise within this State.
THE RETURNS WERE "DOCTORED."
Now, we go along a little further. Appearances were very much
against Mr. Baxter's election, and it was deemed important and neces-
sary to raise the returns, to forge the evidence on which Mr. Baxter's
pretended title rested, and to establish by proof the existence of that
which, in point of fact, did not exist — that was, that Baxter had received
the most votes. In order to accomplish that they adopted the system
of raising the returns, as it is called in common parlance. That was
called " doctoring the returns," and the officials on Baxter's side used that
expression and are entitled to the credit of having originated it. They
sent out men with the returns first received in order to get the willing
officials to make changes in the result and to send in false, fraudulent,
and forged returns, showing a different state of facts from that which
were first reported. That is in testimony in the record.
Well, I have heard it said that Baxter knew nothing of them, and
that if it was all fraudulent, and all false, and all put up in this way,
as he was an innocent party, those returns gave him as good a title as
if they were all right. I presume that I must have read the law to
very poor purpose, for I never understood that a man could, on false
testimony, acquire an honest right to a thing which did not belong to
him. But there is evidence that Baxter was not entirely blameless in
this matter. I will cite one or two instances : Tom Martin testified-
that he was coming down to Little Rock, from some of the rural dis
tricts, with the clerk of his county, and met Baxter at Prospect Bluff
He was a strong partisan of Baxter's. Baxter had gone to bed, but
Martin went up to his room, and told him that the clerk of the county
was with him and had the county returns made out, so that they were
flexible and that they could be fixed up and raised to any extent
which was necessary ; and if he wanted the returns raised he would
like to have him indicate to him how much they should be raised.
He says that Baxter told him to go and see them at the Little Bock
and squeezed his hand. Martin said that he understood the significance
of that squeeze, and he went to Little Rock and the thing was fixed up.
Baxter, how ever, came on the stand and testified that the same conversa-
tion occurred. He told it about as it was. He said that he was tired and did
not want to be disturbed ; but, it seems that instead of resenting Martin's
suggestion in such a manner as to show that he did not approve of it, he
told him that he had nothing to do with it — to see them at the Rock ; he
says he did not recollect the squeezing f Martin's hand. Now, I would
suggest that in these days of morbid sentiment on the subject of sensa-
tional literature, if a distinguished lady in this or any other city were
to receive a suggestion of evil, and, instead of resenting it in a manner
which became a virtuous woman, were to say " O, no ; go and see
somebody else ; I am not that kind of woman," and should squeeze the
hand of the man who made the suggestion, my impression is that upon
those facts alone, the newspapers would actually pronounce such
conduct imprudent. I am not sure but that there are persons within
the sound of my voice who are so prone to suspicion that they would
actually suspect her virtue, based on that statement; and yet the inno-
cent Baxter would have us believe that he was not a party to those
frauds. A western editor, an old bachelor, far advanced in life, alluding
to this testimony, said that it was the only romance which he had seen
in the whole Arkansas muddle ; and that all the romance in that was
that it brought to his memory a song which he had heard in early life;
and that all of the song which he remembered was " If you love me,
Sally, squeeze my hand." He said that while there was not much in
the thing when taken by itself, yet he presumed that the balance of the
song was in harmony with that idea. Now, this transaction of Baxter
and Tom Martin, taken by itself, did not prove much ; yet, inasmuch as
it was in harmony with this greatest of all human frauds, I take it that
it proves a great deal.
After all the disfranchisement, the changes in the ballots, the stuffing
of the ballot-boxes, and all the doctoring of the returns, still the
returns which were last sent up to the seat of government showed
that Mr. Brooks was elected. With all that they had done they could
not get rid of this one result. And here Mr. Baxter comes in again.
Colonel Hill swears that he was one of the friends of Baxter and one
of the flgurers for him in this contest; and, that as fast as they got the
returns from anywhere (he did not speak of official returns, but of
information as to what the vote was) he and Baxter and the secre-
tary of state would meet in a room which was taken for the purpose,
and would there figure up the returns, and that Baxter's own figures,
made on all the most favorable returns, even after they had been doc-
tored, still showed that Brooks had been elected by a considerable ma-
jority. Something else had to be done.
THE RETURNS OF THREE COUNTIES AND FORTY-EIGHT PRECINCTS
IN OTHER COUNTIES SUPPRESSED.
They then resorted to another system of settling this question. That
was to reject and exclude from the returns which were to be sent to the
presiding officer of the senate the returns of three whole counties which
had given large majorities for Brooks. They pocketed these, and turned
their attention to the balance, and when they were figured up, they
showed that Mr. Brooks was still elected. They then went to work and
excluded from the returns which were to be sent to the senate the returns
of forty-eight precincts in other counties, which precincts bad also given
large majorities for Brooks. When that had been accomplished, when
they had excluded the three counties and suppressed their vote, in viola-
tion of law, and had fraudulently and unlawfully suppressed the vote of
forty-eight precincts of other counties in the same manner, then they had
finally succeeded in doing what they had never done before — that is, in
getting the result in favor of Baxter. The vote, as officially counted,
Baxter 41, 784
Brooks 38, 673
Majority for Baxter 3, 111
Brooks's gaiu on the returns 6, 113
By ballot-box stuffing and raised returns 3, 843
Side-poll 3, 327
Leaving a majority for Brooks on the vote, of 10, 173
In addition, Brooks was deprived, as shown by the proof, of. . 3, 617
The total majority for Brooks, as shown by the proof, should
be „ 13, 789
Leaving out here those which were stricken from the registration*
books, and did not vote, (for I do not insist that they should be counted
as a part of this case,) it still leaves a majority of 10,173 for Brooks. There-
fore, after all their other frauds, in order to produce a balance in favor
of Baxter, they were compelled to suppress those returns ; and they
sent to the president of the senate the returns, after deducting from
them those that had been suppressed as before stated. All this was
done under the supervision of Mr. Baxter, according to the testimony of
Hill. The computation was even made in Baxter's own handwriting,
and, according to the proof which we have taken, (only a portion of
what we might have taken,) we have established that Mr. Brooks was
over 10,000 votes ahead at the close of the polls on the day of election ;
that he was largely ahead when the first returns were sent to the seat
of government, was ahead when the " doctored" returns were received,
and was ahead, as shown by the full returns, the day the presiding
officer of the senate declared the result.
During all these times Baxter was plastering up his weak pretensions
by fraud and forgery, and every other means which his feeble ingenuity
could invent to get a balance in his favor.
THE LEGISLATURE WAS ORGANIZED BY FRAUD AND VIOLENCE.
We now come to the organization of the legislature, and the same
suppressed returns and fraudulent votes eutered into the election of a
considerable portion of that legislature. By virtue of these very frauds
by which Baxter was put in office, at least twenty-five members of the
house and ten of the senate were sent into the legislature, who were
never elected by the people, and who had no claim or pretence to be
elected. That is established by the testimony. Twenty-five members
of the house and ten of the senate were sent to the legislature by the
same frauds and the same violation of law by which Baxter was to be
declared governor. There is no question but that Brooks's friends had
a majority of the persons who were legally elected to both branches of
the legislature. They had on foot a proposition to organize this legis-
lature at O'Hara's Hall, in the city of Little Bock, and thus to have the
question of the election brought before Congress. The bottom fell out
of tbat proposition, and I was, for months, unable to tell how it hap-
pened. Finally I ascertained it. Some of the persons who ran on the
Brooks ticket for Congress were democrats, and some of their partisan
friends in town were anxious to have Baxter give them certificates of
their election. Hadley would not give them, except to one candidate,
and he was a republican. Smithee, who figures in this case, swears,
and some other witnesses swear, that they went to Baxter and made a
statement to him of those other eases — perhaps Gunter's and Cause's —
and told Baxter that if he would give those men certificates of their
election to Congress, as soon as he was installed, they would get all the
democrats in the legislature who ran on the Brooks ticket to go into
the Baxter legislature, and thus deprive Brooks of a quorum in his
separate legislature. Baxter agreed to do it upon that basis, and twenty-
live or thirty of those men who had run on the ticket with Brooks, and
who never would have been elected but for that fact, abandoned Brooks
for the sake of procuring for their political friends a certificate of elec-
tion to Congress, and went over to the Baxter legislature. The organiza-
tion was thus effected, and Mr. Brooks and his friends were defeated
in their effort to organize a separate legislature. The thing went on,
and after Baxter had got the benefit of that trade, so far as he was con-
cerned, (he had got the legislature all in his own hands,) he turned
around and told Gunter and Gause that he did not see their case as
distinctly as he did at the time that proposition was made, and, there-
fore, he declined to give them the certificates. He declined to perform
his part of this contract. The legislature, as arranged after this trade
was made, was organized, supported by the State militia. The State-
house was surrounded by armed men ; the doors of both chambers of
the legislature were guarded by bayonets, and the secretary of state
made ont a list of such men as he, in his wisdom, thought proper to
have in that legislature, without any regard to whether they were
elected or not. They were picked and culled from the crowd. That
list was prepared to be furnished to the legislature, and sentinels were
placed at the door of each chamber, and passes, signed by the secretary
of state, were the only means by which any man could get in there to
present his credentials or to assert his claim. These are supposed to be
some of the evidences of a republican form of government. Baxter
made some remark in his argument here about the heel of oppression
having been on the people of Arkansas, and if he was here now, I would
take pains to see if I could not identify that heel. This guard, placed at
the doors of the legislature, kept out every man who was legally elect-
ed unless his name was on the list prepared by the secretary of state,
and let men in who had no pretense of being elected, if they were so
fortunate as to get their names on the list, for such only could get the
necessary pass. That legislature assembled, as was stated in the open-
ing argument, with the tacit understanding and arrangement that the
persons whose names were on the list, and who went into the legisla-
ture, should remain in it all through the term ; that no contests for their
seats were to be allowed, or that no man was to be allowed to be un-
seated on such contest. All this explaius why it was that Mr. Baxter
has been so exceedingly anxious to have all those questions submitted
to that legislature, which was as fraudulent in its organization as he
was in his preteusion.
Now, I wish to call the attention of the committee especially to one
or two points in the testimony which sustain this view of the case. I
read from Judge Warwick's testimony, on page 238:
Q. It has been stated that there was au understanding at the commencement that
no member was to be unseated ; what do you know about such au arrangement ? — A.
I cannot say that there ever was a positive arrangement to that effect. When the
lower house was organized, we (I mean the republicans) had au active working major-
ity iu it. There were a number of democrats whose seats were contested, aud there were
also some republicans whose seats were contested. Mr. Tankersley's district was con-
tested, and so was Mr. Sarber's, and so was Mr. Turner's. A large number of the con-
tests for seats, if investigated, would have been against republicans.
Q. The contests would have succeeded? — A. That I cannot say.
Q. But if they had succeeded, it would have been against the republicans ? — A. Yes.
There was no agreement, but there was a quasi understanding between Mr. Tank-
ersley, Mr. Sarber, and myself at the beginning, (perhaps at my own suggestion,) that if
all those seats were contested it would take up one-half the time of the legislature to de-
termine them, and might perhaps develop some things which we did uot care to have
developed at that time. But my own reason for it was that these contests would take
up one-half or two-thirds' of the time of the legislature. There was a quasi under-
standing that we would do all we could to prevent any change being made in the com-
plexion of the house, whether by republicans or democrats.
Q. That is, you would prevent, as far as possible, the success of any contests on
either side ? — A. Yes.
Q. You and Sarber and Tankersley were all republicans? — A. Yes.
Q. And the majority of the house were republicans ? — A. Yes. The seat of Mr. Sump-
ter, a democrat from Hot Springs County, was in contest, and I think we gave him to
understand at the beginning that he need not have any apprehension, as we did not
propose to have any changes made in the organization of the house.
Q. That house was organized on the list furnished by the secretary of state ? — A.
Q. The members went in under passes ? — A. I believe we all had passes.
Q. Nobody else was allowed in at the preliminary organization ? — A. No, sir.
Q. And afterward you and Tankersley and Sarber, three republicans, with a republi-
can majority there, had a quasi understanding that no contests would be allowed to
succeed, aud that no changes should take place in the body ? — A. I think we had that
understanding before we went in.
Q. That you would go in on that roll, and that no changes of members should be
made ? — A. Yes, sir.
Q. And you gave Sumpter to understand that that was the fact? — A. My recollec-
tion is that Sumpter was given to understand that that would be the case.
Q. When the resolution to that effect was adopted afterward, was it not voted for
by republicans and democrats almost unanimously ? — A. I have not thought about the
matter since, but my recollection now is, that there was no dissenting vote against the
Of course not. They were all in. The poor fellows who were en-
titled to their seats, and who were trying to get in, did not have a
chance to vote. I presume unanimity can be secured in that way easier
than in auy other in the world, unless it is under Governor Lowe's theory
of the unanimous expression of public sentiment at the last election in
Arkansas, with 40,000 armed men to make the balance unanimous.
Mr. Warwick's testimony proceeds :
Q. You agreed that the ins should stay in, and the ins all voted for it? — A. Yes ; my
recollection is that that resolution was adopted somewhat late in the session.
Q. The understanding, however, was made before you organized ? — A. Yes.
Q. Did Secretary Johnson know of that understanding? — A. Not that I know of.
Now, that is the organization of the house to which Mr. Baxter says
he was willing to submit this case, and which he believed did have
jurisdiction of the matter, if it was willing to take it — a legislature
counted in partly by the same frauds by which he was himself counted
in ; and most of those who ran on the ticket with Mr. Brooks, and who
were elected, were induced to abandon the side they had run upon, and
to join the Baxter side, under the promise and contract made with
Baxter. It was a close corporation which would let none of its seats
be successfully contested ; and that is the legislature, with all the
fraudulent members in it, to which Mr. Baxter was willing to submit
the question whether his election was free from fraud. The testimony
shows a great many cases where men who had overwhelming majorities
for the legislature, aud who attempted to contest for their seats, were
defeated on some trivial, contemptible ground, which it was a disgrace
even to that legislature to insist upon.
1 will now read to the committee one or two extracts from the testi-
mony to show how the house was organized. I read from Sheriff Oli-
ver's testimony, on page 338 :
Q. State what you know about the election of 1872. — A. I know so much about the
electioo of 1872 that it would take me a week or two to tell it.
Q. What do you know about the organization of the legislature on the first Monday
of January, 187:? ? — A. If I remember right, I think they furnished me with a list of
members, and wanted me to let in only those who were elected. I was door-keeper of
Q. Who furnished you with the list ? — A. I think Secretary Johnson himself. I
know I had two or three talks with Baxter about that before that.
Q. Did Baxter ask you to act as door-keeper ? — A. I talked with him a good many
times about that and about his getting possession of the house. I had a great many
talks with him. In fact I talked with him nearly every night about getting possession
of the State-house and keeping men there and holding possession of it. The reform
party was about to hold a convention there, and it was agreed that all State conven-
tions should be held in the State-house. I think this convention was to meet on a Sat-
urday, and we were afraid that the members of the convention and tbe Brooks members
of the legislature would get in together and hold the hall, and it was in order to prevent
that that I was there, and had conversations with Brooks and Johnson, and also, I
think, with Bowen.
Q. You ran on tbe Baxter ticket? — A. Yes, sir.
Q. And that was your theory of defense up there ? — A. Yes.
Q. That convention met and organized in another place in town ? — A. Yes.
Q. The convention had adjourued on Monday ? — A. Yes.
Q. Then on Monday you did not expect any convention in the State-house ? — A. No.
Q. Were you not, in point of fact, put there as door-keeper to keep out everybody
except those who were on the list ? — A. On Monday I had a lot of special deputies and
kept them there, but the house was really in possession of General Upham.
Q. Were any persons allowed to pass in except those whose names Secretary John-
son had put on the list as persons whom he called members of the legislature ? — A.
Not till after the organization of the legislature, until they took charge themselves by
their own sergeant-at-arms and door-keepers.
There is the legislature as organized for the purpose of making this
declaration of the vote for governor. There is a legislature organized
as part and parcel of the same general programme of fraud by which
the result of that election was to be declared, without regard to the
votes. There is a large amount of testimony on that point, but I will
not trouble the committee with reading it.
After that legislature was thus organized, the next thing was the can-
vassing the vote for governor, and as we have to go over the whole of
that ground, I will call the attention of the committee to the provisions
of the law on that question.
THE COUNTING THE VOTES BY PRESIDENT OF THE SENATE, MERELY
Section 19, of article G of the constitution, provides that —
All the returns of each election for governor, lieutenant-governor, secretary of state,
treasurer, attorney-general, auditor, and superintendent of public instruction shall
be sealed up and transmitted to the seat of; government by the retnrniug-officers,
directed to the presiding officer of the senate, who, during the first week of the session,
shall open and publish the same in the presence of the members then assembled.
Now, the reason I speak of that is that much stress has been placed
on the question that the legislature there solemnly decided that Baxter
was elected. Importance has been given to the fact that the president of
the senate made a ministerial count. The newspapers have been full
of it ; and the attorneys on behalf of Baxter's fraudulent government
have insisted that that was a declaration of the right of Baxter; aud,
in the voluminous documents which Baxter sent to the President, and
which have been perhaps more voluminous than substantial on legal
points, he has invariably urged that argument as if that was conclu-
Now, in the first place, under this section (19) of article 6 of the con-
stitution, the senate has nothing to do with it. There need not be a
quorum present at the time. It does not say that the president of the
senate should open the returns in the presence of the senate. It says
that be should opeu and publish them iu the presence of the members
then assembled. Three members would answer the purpose as well as
a quorum, so far as the reading of this section is concerned ; for, all
through the constitution, whenever the house or the senate is spok m
of, it is spoken of as a body, as a quorum of each house — after hav-
ing defined what a quorum should be. Therefore, it is simply a personal
act of the president of the senate to make that count and publication,
and the senate has nothing on earth to do with it. The act is purely
ministerial. The president of the senate has no right to do anything
except to compute, to add up, the returns from the different counties as
they are sent to him sealed, and to declare who, as appears from those
returns, has the most votes. Now, to contend that that would set-
tle the question of who was governor of Arkansas, would be to say that
the people did not elect the governor, but that it all lay with the presi-
dent of the senate ; or, we might go still further and admit (as I pre-
sume was the case in this instance) that the president of the senate was
innocent in this matter, that he knew nothing at all about it, (as is the
testimony,) but that the question of who was the governor was to depend
on the secretary of state or on the former president of the senate, (as
was the case here,) who sent the returns to that presiding officer ; or,
we might carry it still further and say that the people of Arkansas are
beholden, not to their own free choice, but to tbe careful discharge of
duty on the part of the porter who carried in those returns ; and, if he
dropped one by the wayside, which changed the result, or if he stole
one out, he could, by any of these acts, destroy the franchise of the
people of the State; that would be carrying the doctrine further than
anybody on the other side but Baxter himself would carry it. He would
carry it that far, but I do not suppose that any lawyer on the other side
but himself would do it.
I will now read a short extract from the testimony of the president
of the senate on that point. Mr. John M. Clayton testifies, on page 145,
as follows :
Question. Were you tbe presidium officer of the seuate that was organized ou tbe first
Monday of January, 1873 ? — Answer. I was.
Q. Were you tbe presiding officer of tbe senate previous to tbe assembling of tbe
senate in that session ? — A. No, sir ; I was not. I was elected on tbe first day of tbe
session as president of the senate pro tern.
Q. Mr. Hadley, who bad been president pro tern., was acting as governor at that
time?— A. Yes.
Q. Leaving the presidency of tbe senate pro tern, vacant? — A. I suppose so.
Q. Did you receive tbe returns from tbe executive officer of the senate as presiding
officer of the senate ? — A. Yes, they were handed to me.
Q. You did receive them through the mail ?— A. No, sir ; I did not take them out of
Q. By whom were they handed to you ? — A. By Governor Hadley's private secretary.
Q. Did you open those returns? — A. Yes; I opened them in the presence of both
houses of the general assembly, on the same day that I received them, and probably
less than two hours after I received them.
Q. What did you do with them? — A. 1 simply tore open the envelopes, took out the
retnrus, opened them, and handed them to the seci'etary of the senate, who read them
aloud, and the i"esults were taken down by two tellers, one elected by the senate and
one by the house, and on their figures I, as presiding officer, declared the result.
Q. Look at those papers (handing to the witness a bundle of returns) and see how
much you know about them being the same ones. — A. (After examining the papers.)
These look to me like the same ones.
Q. They were in envelopes similar to these?— A. Yes; I have no doubt that they
are tbe same returns.
Now as an evidence that they did not regard that as a j udicial or legisla-
tive action on the subject, the journal of this joint meeting of the legisla-
ture shows that Mr. Thrower, a member of the legislature from Ouachita
County, offered a resolution before that body, and a point of order was
raised upon him, that the two houses had met for the simple purpose
of counting up those returns, and declaring the result, and that they
had no right to do any other business. The point of order was sus-
tained, and his resolution was ruled out of order. The question has
been mooted that there was a full and fair chance to discuss the whole of
the subject-matter at that time before both houses, but that is not true.
There was no opportunity to discuss anything. They held there, (and,
I think eorrectly, according to law,) that they were not acting in a legis-
lative capacity at all ; that they were simply there as witnesses and by-
standers, to see the president of the senate not declare who was elected
from the whole vote cast, but compute the numbers on such returns as
had fallen into his hands, and to make the declaration of w r hat that
computation amounted to.
The Chairman. Was this resolution of Mr. Throwers in relation to
the election H
Mr. Rice. Yes, sir ; it is in testimony that he offerred a resolution in
reference to the election. He was a friend of Brooks ; and they silenced
him on the ground that there was no jurisdiction in the joint meeting
of the two houses.
BROOKS'S PETITION FOR CONTEST BEFORE THE LEGISLATURE.
The next point which we come to in the investigation of this case is
the presentation of Mr. Brooks's petition to the legislature. There has
been a good deal said about that. I will now read the concluding por-
tion of section 19, article 6, of the constitution of 1868 :
Contested elections shall, in like manner, be determined by both houses of the gen-
eral assembly in such mauner as is, or may hereafter be, prescribed by law.
Under that section Brooks presented his petition for contest. A vast
amount of misrepresentation has been indulged in on that question. It
has been said that the legislature solemnly considered that case ; that
the petition was received and read and acted upon ; and that its rejec-
tion amounted to a foreclosure of Brooks's rights. Now, such is not the
fact. Not one word of it ^is true, except that the petition was offered,
and that it was rejected. I admit here that the record (the legislature
being then in the Baxter interest) shows that the petition was read; and
yet the testimony in the case, even by the officer who made the record,
and by other persons who were present, shows conclusively that it never
was read. However, I attach no importance to that except that I pro-
pose to state the facts correctly. That petition was presented to the
lower house of the legislature by Mr. Thrower, (the same man who had
undertaken to raise the question at the time the count was made;) that
petition concluded with a prayer for leave to introduce proof. I may
as well read from Gould's Digest the provisions in regard to contested
elections. It is —
Sec. 101. If any person contest the election of governor, he shall present his petition
to the general assembly, setting forth the points on which he will contest the same,
and the facts which he will prove in support of such points, and shall pray for leave to
introduce his proof; and a vote shall be taken by yeas and nays, in each house, whether
the prayer shall be granted.
Sec. 102. If a majority of the whole number of votes of both houses shall be in the
affirmative, they shall appoint a joint committee to take the testimony on the part of
the petitioner, and also on the part of the person whose place is contested, with power
to send for witnesses; who may issue warrants, under the hand of the chairman, to
any judge or justice of the peace, to take the deposition of witnesses, at such time
and place as the warrant shall direct; and the points to which the testimony is to b©
taken shall be set forth in such warrant.
Thus it is left discretionary with the legislature, as to whether it will
entertain the contest or not. Mr. Thrower did not read, but he intro-
duced, that petition, and he moved that the prayer of the petition be
granted. According to the oral testimony in this case, it was never
read. Some other member then moved, as a substitute for Thrower's
motion, that the petition be rejected, and the petition was rejected, and
there the matter ended. This took place in the lower house ; it never
appeared in the senate. Now we are told with all seriousness that that
was a settlement of this whole question; that the great principles of
constitutional government; that the rights of the people of the State;
that the franchise of Mr. Brooks as the legally elected governor of the
State, are all swept away by the refusal of a legislature to entertain
a petition to contest the election and to investigate these frauds.
That would seem to be a pretty strong proposition. Now, in the
first place, if the legislature is, by section 19 of article 6 of the
constitution, clothed with judicial authority to try this question if
the judicial power of the courts has been vested in the legislature for
the purpose of trying such a case, then we must apply the rules of ju-
dicial proceedings to it; we must apply the forms and principles of law
to it, and see what this amounts to. Does the presentation of a petition to
one house of the legislature and the summary rejection of that petition
amount to an adjudication of the case % Even that has been urged. I un-
derstand that it was urged in the argument on the other side that it does
amount to a settlement of the whole case. If that is an adjudication, it is
not upon the principles of the common law. The most that can be said of
it is that the proceeding was commenced in that tribunal, (created as a
tribunal under the nineteenth section of article of the constitution,)
and that tribunal struck the plaintiff's petition from its records. Does
that bar the right? But go still further, and say that the rejection of
that petition amounts to deciding that it did not state facts sufficient to
constitute a cause of action or to entitle the petitioner to the relief de-
manded. It would be simply like a general demurrer to a declaration in
court. Now, I will submit to the gentleman on the other side whether
there is a lawyer here who claims that, if a plaintiff briugs a suit and is
defeated and thrown out of court upon a general demurrer to his dec-
laration or complaint, that that is a bar to his cause ot action.
I never heard of such a proposition until I heard it here. I grow wiser
as I grow older. Was the petition ever decided upon its merits "\ Not
at all. The practice differs in the various States according to the stat-
utory regulations. In the State of New York, (whose practice we have
undertaken to follow in Arkansas,) my recollection of the law is that,
even after issue is joined, if the attorney for the plaintiff in opening his
case makes a defective statement which does not show him entitled
to recover, the court has a right to non-suit hi in on his statement. And
nobody would contend that that is a bar. Under the principles of the
common law, the plaintiff has a right to go on to trial, to argument ; and,
at the conclusion of the argument, he has a right to suffer a non-suit.
That is so in every State of the Union, and that non-suit is not a bar.
In most of the States of the Union he has a right to dismiss his case,
or suffer a non-suit at any time before the verdict is announced.
The Chairman. I see by reading that statute of yours that it does
not seem to have been the intention of the legislature to give a man
who desires to contest the right to file his petition as a matter of right,
but it goes on to say that he may file a petition, and the vote shall be
taken by yeas and nays, as to whether he shall have leave to contest.
Now, suppose that that petition had been read, and that the legislature
bad gone on with the discussion of it fairly, and that then the question
had been taken, in the manner provided by law, as to whether he should
have leave to tile his petition and present bis proofs, and suppose the
legislature decided against it, would that have made any legal difference
in the result ?
Mr. Rice. I think not. Even if the legislature act judicially in such
matters, I don't think it would amount to a bar. The authorities are
conclusive that before a claim is barred, res adjudicata, so as to foreclose
the rights of the plaintiff, there must have been an adjudication, not
upon technical points raised in the case, but an adjudication upon the
merits of the controversy.
In this case the merits of the controversy were not investigated before
the legislature. The house of representatives refused to allow Mr.
Brooks to file his petition and refused in any manner to enter upon the
investigation of his case.
The Chairman. Suppose he had been permitted to file his petition
and to take his proofs, and that there had been a decision upon the
merits, as you call it, by the legislature, do you concede that that would
be a bar to him °?
Mr. Rice. If the legislature acts judicially in these contests and had
tried and adjudicated this case upon the merits, deciding against Mr.
Brooks, (unless the tribunal could have been impeached for fraud in
its organization,) it would have been a bar so far as to preclude Mr.
Brooks from presenting his case to any other judicial tribunal; but I
do not admit that it would preclude Congress from securing to the peo-
ple of Arkansas a republican form of government, administered by the
officers lawfully chosen by themselves ; and that body would not be
estopped from looking into the frauds by which the people of a State
had been robbed of their suffrages, simply because the question had
been decided by a tribunal whose existence depended upon sustaining
these frauds. Mr. Baxter says that if there was anything wrong or
unfair in the rejection of Mr. Brooks's petition for contest, it was no
fault of his ; that he was anxious to get rid of the office of governor
whenever he could do so honorably. This is a strange statement, taken
in connection with the proof in this case. If he had wanted to get rid
of the office of governor, which he knew he fraudulently and wrong-
fully held, it would seem that he might have devised some meaus to
have transferred it to Mr. Brooks, the person to whom he knew it right-
fully belonged, and that he could have accomplished this with far less
labor and expense than he bestowed upon his dishonorable efforts to
prevent Mr. Brooks from asserting his claim to the office. But Baxter
says upon his honor that he had nothing to do with preventing the con-
test before the legislature. Now I propose to read a little testimony
upon that subject and see what we can gather from it. We are investi-
gating a conspiracy, and all who have ever had the misfortune to be
employed as counsel to develop a conspiracy know the very great in-
convenience of establishing the case when it has to be proved by wit-
nesses who are unwilling to disclose what they know. Judge Stephen-
son, who has figured considerably in this case, who was a strong Baxter
adherent and one of his private counsellors and friends, says, on page
Q. State what you know in reference to the contest of Brooks, so far as anything
that Governor Baxter did to prevent an investigation. — A. It would be very difficult
for me to do so iu that shape of the question. I know that there was a concerted ac-
tion on the part of leading republicans here to prevent that contest, and I know that
Governor Baxter was a party to that concerted action. There never has been any dis-
pute on that point.
Yet Baxter in his argument here pledges himself, on the honor of a
gentleman, that he had nothing to do with preventing that contest, but
would lead us to infer that in that matter he was as placid as the
unmoved surface of a summer sea. He was perfectly indifferent to the
question, and the legislature could do as it pleased; yet there is the
testimony of one of his then most active supporters, aiders, and abettors,
and he swears that there is no dispute upon the point ; that there was
what we would term, in plain language, a conspiracy to prevent that
investigation, and that Baxter was a party to that conspiracy. In the
face of that testimony and of a vast amount of like testimony, Mr. Baxter
must excuse me if I take the statement of the witnesses, even against
his word on the honor of a gentleman.
After the legislature had voted with such singular unanimity in favor
of rejecting Mr. Brooks's petition, which has often been alluded to as
showing that the whole State rose up and called Baxter blessed, and
that the people were all for him with a devotedness unknown even to
the ancient apostles, yet, to cover up or bridge over some real or sup-
posed difficulty growing out of the transaction, Baxter appointed forty-
one members of that legislature to office, every one of whom had voted
to reject Brooks's petition. Now, it is difficult to explain how, with his
honor as a gentlenlau, and consistent with fair dealing in the transac-
tion, such a thing occurred, unless it was based upon the well-received
maxim, that "the laborer is worthy of his hire." All these members are
to-day, or were until they went the way of all flesh under the new con-
stitution, performing duties and drawing salaries as a compensation for
violating the rights of Mr. Brooks.
THE LEGISLATURE DUES NOT ACT JUDICIALLY IN CONTESTED ELECTION
But I will remark here, that I have serious doubts whether the legis-
lature perform any judicial functions in determining a contested election
under section 19 of article 6 of the constitution. That section provides
that the presiding officer of the Senate, during the first week of the
session, shall open and publish the returns in the presence of the mem-
bers then assembled. This is merely a primary ascertainment as a
basis for a prima facie case for the person in whose favor the result is
declared. If the person against whom the declaration is made is not
satisfied with the declared result, he may contest the same; and the
same section provides that "contested elections shall likewise be deter-
mined by both houses of the general assembly in such manner as is or
may hereafter be prescribed by law." Is this determination parliamen-
tary or judicial 1? The declaration by the president of the senate was not
judicial, and the section provides that contested elections shall likewise
be determined, &c; that is, they shall be determined for like purpose,
and with like effect. If this be correct the determination of a contested
election by the legislature is only a parliamentary determination for
the purpose of establishing a prima facie case, and is not a judicial
determination. The constitution of 183G, section 3, article 5, provides
that, " contested elections for governor shall be determined by both
houses of the general assembly in such manner as shall be prescribed
by law." This was not regarded as a judicial proceeding, as is evident
from the fact that in the act carrying into effect this provision of the
constitution of 1836, the legislature left it discretionary whether or not
they would entertain the contest. This discretion is seldom, if ever,
extended to judicial tribunals.
Section 19 of article G of the constitution of 1868 was evidently taken
from section 3, article 5, of the constitution of 183G, which limits the
contest to the ofhee of governor ; ami as that limitation is omitted in
the constitution of 1808, it is fair to presume that the convention in-
tended to authorize the legislature to determine contests, not only for
the office of governor, but for every other elective office. It certainly
did not iuteud to clothe the legislature with that much judicial power,
either exclusively or concurrent with the courts.
Section 1, article 4, constitution of 18G8, provides that " the powers of
the government are divided into three departments, the legislative, the
executive, and the judicial."
Section 2 of the same article provides that " no person belonging to
one department shall exercise the powers properly belonging to another,
except in the cases express!;/ provided in this constitution."
Section 1, article 7, provides that " the judicial power of the State
shall be vested in the senate sitting as a court of impeachment, a su-
preme court, circuit courts, and such other courts, inferior to the supreme
court, as the general assembly may, from time to time, establish."
Section 5 makes the circuit courts superior courts of general juris-
diction, and provides that the legislature may change their jurisdiction.
Section 522 of the civil code provides that in lieu of quo warranto,
or information in the nature of quo warranto, actions may be brought to
prevent the usurpation of office.
And section 4 of article 7 expressly gives the supreme court original
jurisdiction of quo warranto. Now, aside from cases of impeachment,
every conceivable judicial power is vested in the judicial department,
where, in the language of the constitution, it properly belongs.
The legislature cannot exercise any judicial power unless it is expressly
given by the constitution. The provision in section 19, article 6, that
the legislature should determine contested elections, does not neces-
sarily raise the implication that judicial power was intended to be con-
ferred, and certainly the language of that section does not expressly
confer on the legislature judicial power in hearing that contest, when
the language would more reasonably imply that it was intended as a
Much stress has been laid on the word " determine," as used in the nine-
teenth section, but that word, as used in the constitution of 1808, has
much more of a legislative thau judicial significance.
Section 14, article 5, authorizes each house to determine the rules of
Section 35, article 5, that upon veto, the vote of both houses upon
reconsideration shall be determined by yeas and nays.
Section 3, article 7, provides that the terms of the judges of the su-
preme court shall be determined by lot.
Section 2, article 15, provides that the legislature may determine the
mode of filling all vacancies in all offices. None of these were judicial
determinations, and the word determine, as used, implies legislative ascer-
tainment rather than a judicial decision. Therefore we insist that the
legislature had no judicial power over the question, and especially no
such exclusive judicial power as would oust the judicial department,
which has been universally recognized and acted upon by the courts of
England and America for 'nearly a century. There is not a State in the
Uniou but what recognizes that the judicial department has jurisdiction
to pass upon and decide the result of an election.
The next point that occurs in this case is the quo warranto. It will
be remembered that the constitution expressly confers upon the supreme
court jurisdiction to issue the writ of quo warranto and hear and deter-
mine the same.
THE QUO-WARRANTO CASE AGAINST BAXTER IN SUPREME COURT, AND
PROCLAMATION OF MARTIAL LAW.
This quo-warranto proceeding has frequently been spoken of as a case
of Brooks against Baxter. Such was not the fact. jS"o such case was
ever pending in the supreme court. The petition for a quo warranto was
filed by the attorney-general, on behalf of the people of the State, against
Elisha Baxter, charging him with having usurped the office of governor,
and asking that a writ issue requiring him to show by what authority
he exercised the iunctious of the said office. This jurisdiction is ex-
pressly given to the supreme court by section 4, article 7, of the consti-
The petition recited that it was on the relation of Joseph Brooks,
which was afterward either stricken out, or treated as stricken out. Mr.
Baxter says in his argument that he employed counsel to defend the
quo warranto on behalf of the State. The people of the State claimed
that Baxter had usurped the office of governor, and through their attor-
ney-general instituted this proceeding to oust him. The State was rep-
resented by the attorney-general, and not by the attorneys employed by
Baxter employed counsel to defend his personal suit, and paid them
out of the funds of the State. He was not sued as governor. That
quo warranto was not against him because lie was governor; it was
against him because he was not governor, and was attempting to per-
form the duties of the office, and was acting therein as a usurper.
But as that quo warranto cuts a considerable figure in this case, and
much has been claimed for the decision rendered in it, I may be excused
for speaking of the surroundings of that case.
Up to the time of that decision nothing had ever been decided in
Arkansas on the question of the construction of the constitution and
acts of the legislature conferring jurisdiction on the courts, or as to the
exact nature of that provision of the constitution. The question of
whether the legislature acted judicially in cases of contested elections,
and, if so, whether the jurisdiction was concurrent with the courts, or
was exclusive, was not an adjudicated question, but rested simply upon
construction of the constitution and statutes.
It has been supposed by the profession that the construction of the
constitution and statutes of a state devolved upon the courts, and not
upon a party litigant, but this case seems to have proceeded upon the
theory that Baxter had a right to decide these questions for himself in
his own case aud resort to force to resist any decision not in accordance
with his views.
Mr. Harrington's testimony shows the atmosphere that surrounded
the court when the case was decided. On page 36" of the testimony
taken in Washington he says :
I am United States district attorney for the eastern district of Arkansas. I do not
know that I can state anything which, will be in the nature of evidence before this
committee. But the chairman asked one of the other witnesses why those who voted
for Baxter in the election were now all supporting Brooks, and why those who are sup-
porting Baxter were all Brooks men at the last election. Prior to the time of the
application for a quo ivarrantoj of which Judge McClnre spoke, I discovered by the
morning papers that Baxter had summoned a body-guard to the executive office.
Being a political and personal friend of the governor, and, in fact, on confidential
terms with him, I immediately went down to bis office and there found a body-guard of
about thirty men. It was not constituted of the Arkansas State guard, but was com-
posed of the class of young men to which the last witness referred — reckless young
men, without any visible means of support, gamblers, unreconstructed men who have
a bitter feeling to all northern men, and to all law and order, in fact. Such is their
public reputation. As soon as I got through them and into the governor's room, being
subjected to a great many insults by them, I asked the governor what it meant, lie
said he had learned that the attorney-general was going to apply for a writ of quo war-
ranto against him, and that he was not going to submit to it. I told him I thought he
must be misinformed ; that I did not think the attorney-general would apply for any
such writ, as he was elected on the same ticket with him : that such a course would
not he to his advantage ; and that no one else but the attorney-general could apply for
it. Governor Baxter said that ho was reliably informed that such was the, ease. I
asked him why he had taken for a guard those men, and why he had not taken the old
governor's guard ; and I referred to their captain, Captain Rose, as a good soldier, and
asked him why he did not call upon him. His answer was, " Because this is policy,
and I want men who will resist the officers of the court, and the court itself, if neces-
sary ; because I do not intend to let them interfere with me at all." We had consider-
able conversation on the subject. I tendered him my services, and said that I would
select men as his guard, if he had no confidence in Captain Rose's company. I said I
would select men who were republicans. I said that it would injure him throughout the
State. I said that Judge English represented the element of the democratic party, from
which we could not hope to recruit. He said that English represented the element
which would resist the decree of the court ; and he said that if he was not interfered
with he would call the legislature together and afterward have the constitution
amended. The court decided at the time that it had no jurisdiction, and the guard
was discharged. I still kept on friendly relations with him. He said that- 1 was the
only republican who had come to see him for some time, while he was sustained by this
guard. His reliance seemed to be on the democratic party. Judge. English is usually
their representative. As late as ten days prior to the decision of the case by Judge
Whytock, Governor Baxter used to say that if they attempted to interfere with him,
he would call the legislature together and have a convention and overturn the gov-
ernment. I said to him that that would turn himself out, and that they would have
no use for him. He said, " Yes, they will ; they agree to run me for governor, and, if I
desire, they will elect me to the Senate to succeed Powell Clayton." These things are
well known in Arkansas. I betray no confidence of the governor in this remark. That
is why republicans who supported Baxter are willing now to take anybody in prefer-
ence to him with that element behind him ; and that is why that element is support-
ing Baxter, because they want a new deal and reconstruction reconstructed. They are
the outs now, and they are against the ins.
I read now from the testimony of Mr. Baxter, page 410 :
Judge McClure, in his testimony, says : " Mr. Baxter never at auy time recognized
this thing as a question for the courts." That is true. He says further: " During the
pendency of the quo-warranto decision, which he thought might affect his right to hold
the office, he had perhaps eighty or ninety men in the state-house, armed with muskets" —
that is not true, nor any part of it — " and said that he would not submit to the judg-
ment of the court in any event." That is true. I have said that frequently. "He as-
sumed to himself the right to say that the court had no jurisdiction in the case." That
is correct. " I have been informed that on the day when the decision was rendered he
had his brigadier-general in the supreme-court room with a proclamation of martial
law, and with instructions to disperse the court in case it granted the writ." No brig-
adier-general ever had such proclamation in his pocket. I confess freely ami frankly
that I had prepared a proclamation of martial law, and had it in my owu pocket, and
that I ilid intend, in the event of a court assuming jurisdiction, to disperse it, on the
ground that it had no jurisdiction of the case, as it has itself decided. I regarded it as
revolutionary, and I looked upon the whole matter as being intended to revolutionize
Up to that time do court had decided that question. I will now read
from his testimony, on page 420, on the same subject:
Q. I understood you to say that previous to the trial of the quo-warranto case you
had determined to pay no attention to the decision of the court. — A. I had determined
not to be ousted by the decision of the court.
Q. You intended to break up the court? — A. Not exactly to break it up. I had in-
tended to declare martial law.
Q. Had there been, up to that time, any decision on that'question by any court '? —
A. No. sir.
Q. You had determined it on your own judgment of the law ? — A. On my own judg-
ment, as I do always.
Q. You stated that you intended to file an answer in that case — in Judge Whytock's
case. — A. I so instructed my attorneys — to prepare an answer and have it ready.
Q. And to litigate the question ? — A. Yes, sir.
Q. Did you intend, if the case were decided against you after litigation, to abide by
that decision ! — A. I intended to take it to the Supreme Court, and if a fair and proper
decision were given, that would put an end to the matter. I did not intend at any
tm e to be ousted by the judgment of any State court.
I will now read from Colonel Oliver's testimony, page 338 :
Q. In reference to this quo-warranto proceeding, did you, as sheriff, attend on the
supreme court in person? — A. I was there iu person.
Q. Previous to the meeting of the court was not this city quiet ? — A. Yes, sir.
Q. There were no disturbances? — A. No, sir.
Q. There was no militia in service? — A. The militia had been all mustered out prior
to that time, until suddenly, oue night about 12 o'clock, I was informed that Baxter
had surrounded himself with a lot of militia. That was just before the meeting of the
court. At first I did not believe it. I thought that some of the folks were joking with
me, and wanted to fool me. I went around and came down the street aud I saw some
of the guns and bayonets. The first man that I recognized was Blocher, who was on
duty. I looked around and saw that they were all democrats, and that most of them
were members of the Knights of the White Camelia. I thought it was a queer kind
Q. State whether, about that time, the militia, which had been organized in the
State, was not disbanded. — A. It was disbanded under the proclamation of Governor
Q. The old militia was disbanded and this new one mustered in ? — A. I do not know
whether these men were ever mustered in or not. They were there with guns, and
they took possession of the two cannon in the state-house yard, which belonged to
myself and Senator Clayton, and refused to give them up to us.
Q. Was^ the state-house surrounded with armed men after that ? — A. There were
armed men there until some time after the decision iu the quo-warranto case.
Q. What conversation did you have with Baxter, or what do you know iu reference
to what those armed men were there for, in connection with the quo-warranto proceed-
ing? — A. Shortly after Governor Baxter had made his Fourth of July speech in Lew-
isbiirgh, in which he is reported as having said that no court should decide in his case,
I had a conversation with him, in which he told me that the court had nothing to do
with the matter whether he was elected or not, and that he did not propose to pay any
attention to the court, aud he asked me whether, if the court issued a writ, I would
serve it. I said, if the court should issue any writ, I should certainly serve it.
Q. That was before the opinion was filed in the clerk's office? — A. Yes; it was
shortly after the Lewisburgh speech
Q. What time was this new militia called into service ? — A. If I recollect rightly it
was in June, 1873.
Q. What time of the day or night? — A. It was about 12 o'clock at night when I
heard of it first.
Q. During the day the men were not there? — A. No, sir. I left the office about 4
o'clock, and I was out riding in the evening, and I did not see any militia around.
The first I heard of it was about 12 o'clock at night, and the next morning I found
cartridges around the windows of my office. Then he had them up-stairs after that
in the day-time. Baxter himself said that I should not come up there to serve any
writ, (that was before the decision,) and Brigadier-General Shaver told me that if I
attempted to do so they would kill me on the stairs.
Q. State what you know about the expected resistance to any action of the court,
and what you did upon it. — A. Mr. Baxter himself told me that the court should not
take jurisdiction of that matter; that the court had nothing to do with it, and he
asked me plainly the question whether I would serve any writ that the court should
issue to me. That was before the case was heard. The day that the case was heard
the court-room was pretty well crowded with men, and Brigadier-General Shaver was
there (as he told me himself) with a proclamation of martial law in his pocket, aud he
said that, if the court had issued ;i writ to oust Baxter, they would have had this
county under martial law, and would have hanged Judge McClure and myself. I
simply remarked that I would be there at the hanging.
Q. Did you inform Judge McClure or any other member of the court of that? — A. I
heard of it through another before Shaver talked with me. I heard of it from a friend,
who was near the throne, and 1 went and told Judge McClure what he might expect.
I told him that I thought I was capable of keeping order in the court, and that if there
was any disturbance all I wanted was for him to tell me to keep order in the court.
'.,». Was Genera] Shaver in court at the time the decision was announced ? — A. I think
he was. I think the judges got off the bench .and counseled by themselves apart. I
do not know whether Shaver remained there or not.
Q. Were armed soldiers in the state-house yard at the time of that hearing — men of
the new militia '! — A. Yes ; I do not know that they were militiamen ; they were armed
mi n. It was a new crowd that Baxter had surrounded himself with.
*,>. It was this democratic militia which was there at that time? — A. Yes; there was
not a republican in the crowd that I recollect, and 1 knew nearly all of them.
There is a vast amount of testimony on that point, but I will not
trouble the committee with reading any more of it. We now approach
the trial of that quo warranto under these peculiar circumstances. As
I thiuk I shall show, the courts of coiumou law have jurisdiction over
the subject-matter of elections, of offices, and of franchises secured by
election. I will show that that jurisdiction has existed for years in En-
gland, and in every State in this Union. It exists in- Arkansas, and
has been exercised there ever since the State was organized. If that
jurisdiction was excluded, it was excluded by the provisions of section
19, article 6, of the constitution of 1808, which provides that the legis-
lature shall determine the question of contested elections. If the juris-
diction was excluded by that section, it was excluded by implication,
by a construction of that section of the constitution. No court had
given it a construction. No court had, up to that time, passed upon it.
It was an open question, about which it might be said that lawyers
might differ, but about which, it seems to me, that lawyers who would
examine the subject, would say that at least the probabilities were in
favor of the jurisdiction remaining still in the judicial department of the
government. It is the province of the courts to construe the constitu-
tion and laws of a State ; and litigants are bound to submit to that con-
struction. If that construction, by a court from which an appeal can
be taken, is not satisfactory, the party may prosecute his appeal, and
have the question decided by a higher court. Mr. Baxter, a litigant in
this matter, instead of pursuing that remedy, without which we can
have no government; without which the judicial tribunals of the coun-
try would be prostituted, and their decisions subjected to the caprice
and whim of every mob, and of every disorderly assembly, arrogated to
himself the right to decide that question, and undertook to enforce his
decision by the arbitrary use of military power. That is the attitude in
which we come to that case. He was going to decide it. Instead of
submitting to the courts a controversy in which Mr. Brooks claimed a
legal franchise which was of value, the party who was seeking to de-
prive him of that franchise proposed to decide the question for himself,
and that the rest of the world should obey his decision. He demurred
to the jurisdiction of every other tribunal. To be sure he was willing
to submit to a court, if the court would certainly decide it in his favor ;
but if the court were to decide it against him, he wouid resist the decis-
ion. He sought to establish, for the first time in America, the doctrine
that a litigant, a party to a suit, is higher than a tribunal in which the
suit is pending. He was willing to submit the question to no judgment
except to the judgment of Elisha Baxter, rendered in his own cause, and
executed by his White League militia. That is the atmosphere, and these
are the surroundings, with which we approach what happened in the
trial of that case. The trial and the subsequent proceedings are more
singular, and perhaps more in violation of our ideas of legal and judi-
cial propriety, than even Baxter's notions. I read from Judge Gregg's
testimony, page 185 :
Q. Did you write the opinion of the majority of the court? — A. Yes, sir.
Q. Did you bring that opinion to the adjourned term, or did you send it here before
the adjourned term? — A. I sent it by mail.
Q. To whom did you send it ? — A. I think to Judge Searle or Judge Stephenson.
The testimony shows that when the oral announcement of the decis-
ion was made, it was agreed that the judges would meet at the ad-
journed term, and would then have the written opinion entered.
Q. What induced you to send it at an earlier period than was first contemplated? —
A. I was induced to do so by various letters which I received from parties here indi-
cating that there was likely to be a misconstruction of the ruling of the court, and call-
ing my attention to it, and urging me to file my views of the law of the case in order to
prevent some misconstruction, perhaps in the lower con; ts ; some of the judges so wrote
to me, and some other individuals.
Q. Did Mr. Baxter's attorneys write to you on the subject? — A. No, sir; I do not
think they did.
Q. Did Judge Caldwell write to yon? — A. Yes, sir ; aud Mr. Wilsh ire wrote to me.
I think that perhaps the auditor of state wrote to me, and I think I had other letters.
Judge Stephenson and Judge Searle both wrote to me, I think. They were my asso-
ciates on the bench.
Q. Was not the case of Brooks against Baxter commenced in the circuit court after
that decision was rendered ? — A. I do not know when it was commenced.
Q. Did the letters to you insist that you should hasten the opinion with a view of
cutting oft" the jurisdiction of the circuit court ? — A. I do not think that that was stated
in any letter. I think that the substance of the letters was that parties seemed not to
understand the point decided by the supreme court, and that they were misconstruing
the decision, and that it was of importance to the public that we should file the
written opinion. That was my recollection. I do not think it was stated that it was
desired to aft'ect the decision of other judges, or anything to that effect.
Q. Look at that opinion (aside from the paragraph on the fly-leaf) and see whether
it is the opinion which you prepared and sent to Judges Searle and Stephenson. — A. I
think so. This is my handwriting.
Q. Did you sign it previous to sending it ? — A. Yes.
Q. This paragraph on the fly-leaf was not to it when you sent it? — A. No, sir; it
was not to it.
Q. It is in your handwriting ? — A. Yes, sir.
Q. How did you come to attach it ?— A. I attached that paragraph at the request of
one or both of my brother judges whom I have mentioned.
Q. Was it not sent up to you in those exact words for you to copy it in your own
handwriting, and to attach it to the opinion? — A. It was very nearly in the same
words. 1 forwarded this opinion as my view, with a request that the other judges
would file their opinions also, and when we met at the adjourned term the records
would still be under our control, and we could withdraw these temporary opinions, and
prepare a proper opinion for record. I think I requested them to file their opinions, and
I sent this as mine. Then I received a communication from one or both of those gen-
tlemen, (Judge Searle and Judge Stephenson,) requesting that I would insert this ad-
ditional paragraph immediately preceding the last clause of my opinion, and urging
that it would be more satisfactory to them, or something to that effect.
Q. Did they send the opinion back to you? — A. No, sir; they sent this paper, re-
questing that it should be copied in my handwriting and inserted before the last clause
in my opinion.
Q. And you sent that paper back to whichever one of the two judges you wrote to ? —
A. Yes, sir.
Q. Did you sign the opiuiou after that paper was attached to it? — A. No, sir ; I did
not see that opinion any more.
Q. Has the court met since then ? — A. O, yes; we held court after that.
Q. Did you meet at the adjourned court? — A. Yes ; that is my recollection.
Q. And the regular term was held afterward ? — A. Yes, sir.
Q. In whose handwriting was the paper which was sent to you? — A. It was in the
handwriting of one of the judges. I am not distinct in my memory as to which, but
I think it wa»s Judge Searle. They were both communicating with me. The paper,
I think, was in the handwriting of Judge Searle.
Q. At the time of the hearing of the quo warranto, was there not a positive threat of
martial law being declared in case the supreme court took jurisdiction in the matter ? —
A. It is a little difficult to answer that question directly. I heard something said about
martial Law, but I never heard of it from any source which caused it to attract my
attention at all as amounting to anything of importance. I heard it mentioned, per-
haps on the street, but never in a way which made me consider it a serious proposal
Q. At the time that that decision was announced, was not Mr. Baxter's adjutant-gen-
eral in the court-room ? — A. I declare I do not know.
Q. V^ere you not aware of the fact, or notified of the fact, or did you not believe the
fact to exist, that he was there with a declaration of martial law, which was to be
announced in case the court took jurisdiction ? — A. If you ask my opinion, I say that
I do not believe it. I heard something about it. I did not apprehend that there was
any danger of martial law, or that it was likely to be declared.
Q. Were not armed men in the State-house yard, and in the other end of the State-
house at the time — State militia ? — A. I do not recollect distinctly.
Q. What is your recollection about it ?— A. I do not recollect to have seen any armed
Q. Was there not a number of armed men, at the time that you held court, in the
State-house or in the State-house grounds ? — A. I do not recollect. If they were there
I do not recollect. I do not recollect to have seen any armed men about the premises
during the time we were holding court.
Q. Did you concur in that memorandum-amendment made to your opinion ?— A. The
objection which I had to adding it was that it seemed to me to savor more of dictum
than of legal ruling. On that ground I had some objection to it. I did not think it
was announcing any incorrect principles of law, but I thought that it was rather dictum,
as tlie matter then stood before the court; but as my brother judges insisted upon it,
and as 1 had not an opportunity of communicating with them in person, I consented
to insert that paragraph.
Q. The question before the court was a motion for a petition for a 3 «o warranto!—
Q. And this dictum, or whatever it was termed, which was added to this opinion, is a
decision that no person litis jurisdiction of the controversy f — A. It is an assertion to
Q. You thought that on the mere question of a motion whether a man should have
a certain writ, the decision of what other courts might do, or might not do, was
rather dictum ? — A. So far as that motion was concerned, although it was only a mo-
tiou to file, yet it was put upon the same grounds as if the merits of the question were
under consideration. We heard two days' discussion of the question, which extended
to the merits as well as to the mere application to file. That, of course, exteuded to
the jurisdiction of the court. If the court bad jurisdiction at all it would have re-
ceived the petition and considered it; but if the court was without jurisdiction, it was
proper to cut off the petition, and we considered that we were deciding really the
case of jurisdiction on that application.
Now on that last testimony Judge Gregg is contradicted by four or
five witnesses who testilied that the announcement was that the judges
would not decide the question of jurisdiction, but would simply decide
the question before them on the motion to hie a petition for a quo war-
Mr. Baxter. Who put Judge Gregg on the stand ?
Mr. Rice. AVe did.
Mr. Baxter. And now I understand you to say that he is contradicted
by four or five other wituesses ?
' Mr. Rice. Yes ; I say so.
Mr. Baxter. Then they contradict your own witness ?
Mr. Eice. Yes. We had to use some materials in which we did not
believe very much ourselves ; but this testimony was extracted from an
unwilling witness, and under the rule of law it is very good testimony,
as against you. I continue to read from Judge Gregg's testimony :
Q. State whether, since that opinion was filed, you have not stated in the presence
of most or all of the judges, that if you had been here before the filing of that opinion
you would not have allowed it to be filed with that addition to it ?— A. I do not re-
member the conversation. I have expressed opinions on it ; and I think I have stated
to some of the judges that if I had been here I should have insisted not to have put it
in. The idea was that if we had had an opportunity for personal consultation I should
have objected to putting it in, because I regarded it as dictum.
Q. I ask you if you do not know the fact, from your correspondence and other
sources, that that paragraph was written out for the purpose of influencing the circuit
court, and with the understanding that if it was added to the opinion the circuit court
would perhaps he governed by it ?— A. I cannot assert that from my knowledge, except
as it might be inferred from circumstances. No one spoke anything to that effect, while
I might have my owu private opinion as to what the other judges who wrote that
paragraph expected it to effect.
Q. I ask yon if Judge Caldwell did not substantially give you to understand that the
object of having that opinion filed was for the purpose of embarrassing the circuit
court ?— A. I think there were no words to that effect. My remembrance of the sub-
stance of Judge Caldwell's letter (I can produce it if need be) is that he urged me to
send a written opinion, as he regarded it as a matter of great public interest that our
written opinion should be filed, and that it should not be delayed any longer.
Q. Why did you understand it to be a case of such public interest if the question
was disposed of ?— A. The reason I gave awhile ago was that the court was miscon-
struing the ruling which we had made.
Q. Do you mean the court, or Brooks's attorneys ?— A. My understanding was that
the judges feared that there would be a misconstruction of our opinion.
Q. Was it as mild as misconstruction ; or was it the idea that they wanted to close
in the Brooks fight a little closer ?— A. I think that their letters were pretty well
guarded. It was put on the ground that it was a matter of public concern, and tha-^
there was likely to be a misconstruction of the ruling of the court, and hence they
wanted the written opinion riled.
Q. I was merely trying to get at their idea. — A. I do not know that the idea in those
letters was any different from what I have stated.
Q. Was there any interest whatever in the filing of that opinion, except as far as it
would affect tue suits which were pending in the circuit court ? — A. I think that my
impression at the time was, and yet is, that the object of having the opinion filed was
to use it in the lower courts.
Q. Theu the public interest of Judge Caldwell and those other gentlemen was to get
that opinion fiied in order to affect the decision of other courts?— A. I think that the
desire expressed was to have that opinion filed so that it could be used in the other
courts for the purpose of conforming their ruling to the ruling of the supreme court.
D. Did you expect that the other courts would regard that additional paragraph as
dictum ?— A. I did not care anything about that. I did not think that that cut any fig-
ure in the case. I would have preferred not to have put it in on that ground.
Q. Do you regard that now as law, or as dictum .'—A. I regard it in the main as dic-
tum. That was my opinion at the time, and is yet. I think, however, that the sub-
stance of the opinion conveys the same meaning as there is in that paragraph ; but I
looked on that as dictum.
There is the statement of Judge Gregg, one of the judges who tried
that case. There is the high disinterested judicial attitude which he
occupies in this case. I will now read from the testimony of Judge
Stephenson, page 2G7 :
Q. Was it understood that you were to meet and agree upon the opinion when you
got together at the next meeting.' — A. Yes ; we were to meet on the 20th of November,
and then submit our views.
Q. You adjourned with that understanding ? — A. Yes.
Q. Was there ever any consultation afterward in the enteriug-up of the opinion as
was then contemplated ? — A. The proceedings afterward were somewhat irregular.
Shortly after the adjournment of the court, I went to Michigan and Illinois to spend
the summer. Judge Searle, who concurred in the opinion, went to Illiuois, I think,
and Judge Gregg went home to the northwestern part of the State. Perhaps a week
or ten days afterward I received a letter from Governor Baxter
He, a judge, receiYed a letter from a party litigant —
containing a general statement of the condition of affairs here, and expressing a wish
that I would return to the State. About two weeks after that I received a letter from
Mr. Compton, one of Governor Baxter's counsel, who wrote, as he said, on behalf of the
governor, urging me to return to the State immediately, as there were some matters
which were considered of great importance to the public interest, and which demanded
that I be here. I wrote in reply to Mr. Compton that I would go to Normal, 111.,
and make a short visit to my friends, and that my post-office address would be at
Normal. When I arrived at Normal I received a telegram from Mr. Wilshire, who
was also counsel for Governor Baxter, urging me to return immediately. I staid
there till the next day, and then started home. On the way — I think at Atlanta, or
some station on the road — I met Judge Searle, who told me that he had also received
a similar request by telegraph to come back. On our arrival here I was informed by
several gentlemen, who were my friends, and the friends of Governor Baxter, that a
suit was pending in the circuit court (I may have known that before I started) of the
same nature as the one which had been decided in the supreme court, and that it was
apprehended, on the part of Governor Baxter and his friends, that unless the opinion
of the supreme court was reduced to writing and put on file, Judge Whytock, of the
circuit court, on the plea that he did not know what the opinion of the supreme court
was, would take jurisdiction of the case, and render some kind of judgment in it ; and
it was considered of great importance that the opinion of the supreme court should be
reduced I > writing and placed on file, so as to be authoritative on Judge Whytock's
court. I understood that Judge Gregg bad been also written to to come to the capital.
The difficulty then was to get the concurring members of the court together for consul-
tation and to reduce the opinion to writing. After consultation, it was agreed that
we should correspond witli Judge Gregg, and, if he were not able to come, that we
would by mail interchange our views, and arrive at a conclusion.
Q. When did you first see this opinion? — A. I wrote to Judge Gregg, and he sub-
mitted his views. He draughted that opinion and sent it down here.
Q. When was that ?— A. That was in the early part of September, I think. Perhaps
the opinion, as perfected, was not received until the latter part of September. It took
some time in correspondence.
Q. Had lie signed the opinion ? — A. Yes.
Q. Go on and state what you know about the slip of paper which is annexed to it ;
where was it written, and by whom ?— A. I was very intimate with Judge Caldwell,
judge of the United States district conrt, and when I got Judge Gregg's opinion I took
it up to Judge Caldwell and showed it to him, or rather read it to him. He made some
suggestions about it. The particular objection which he had to the opinion was that
nowhere in it was there an epitomized statement of the facts in short form, so that the
public and everybody interested would readily grasp it; and lie suggested a change, or
that there be interpolated at the end of the opinion a short summarized statement of
the points contained in it. Judge Caldwell met Judge Searle and myself in the library
of the supreme court the next morning, perhaps, after I had the consultation with
him. I sat down and embodied what I conceived to be Judge Caldwell's ideas, telling
him, however, that I thought they were all in the opinion already 7 . He admitted that
they were, but said that they were not in such a concise form as that they could be
understood generally by r the public. He was not exactly satisfied with what I had
written, and he wrote himself a statement of what he desired to go to the public, I sup-
pose, and in that Judge Searle and myself agreed. It was substantially what the opin-
ion was. I sat down and copied the statement of Judge Caldwell in my own hand-
writing, and wrote to Judge Gregg, telling him what the object and desire of his friends
here in reference to it was, (perhaps I mentioned Judge Caldwell's name ;) and I asked
him, if it met his views, to copy it in his own handwriting and send it to me with
authority to add it to his opinion. I sent that statement to Judge Gregg, who copied
it in his own handwriting, and I appended it to the opinion. That is the history of
Q. Had you signed the opiniou before that was appended ? — A. No, sir.
Q. Had Judge Searle? — A. I think he had. I think he signed it with the understand-
ing that that should go in. I know that he was present when it was seut to Judge
Gregg, and we agreed that if he should concur and send it down it would be appended
to the opinion.
Q. What correspondence had you with Judge Gregg in regard to the extraordinary
mode of getting that opinion into the clerk's office ? — A. None at all.
Q. What correspondence had you on the general subject ? — A. This agreement was
entered into by Judge Gregg, Judge Searle, and myself at the time of the adjournment :
that the opinion was not to be filed until the November meeting; and, as a reason why
that agreement should be departed from, I stated to him that it was considered absolutely
necessary by Governor Baxter and his friends that the opinion be placed ou tile, and I
gave him the reasons for it. Governor Baxter had frequently said that he considered
the question settled, first by the legislature and second by the opiuion of the supreme
court, and that if any other court should attempt to interfere with his office he would
consider it revolutionary, as it would involve the State in turmoil, and he would con-
sider it to be his duty to protect himself from the judgment of that circuit court by the
means which he had in his hands at the time. I think that Mr. Wilshire and myself
and several others frequently talked over that matter. I know that I did with Gov-
ernor Baxter, and I think, also, with Mr. Wilshire as to Governor Baxter's being justi-
fied in using the means at his command to prevent any interference with his office by
the circuit court.
Q. What means?— A.. The militia. The object was to avoid that catastrophe, and to
avoid the necessity of drawing out the militia to preveut the execution of such a judg-
ment. I know that such a thing was apprehended by those who were interested in
preserving the peace and quiet of the community ; and I think that all the gentlemen
who were operating with me at that time had the same desire to quiet the affairs of
the State. We concluded that it was better to have that opiniou go on file at that
Q. State whether Judge Caldwell was an active partisan of Mr. Baxter.— A. He was
certainly very friendly to Mr. Baxter, as I myself was at that time.
Q. Was he not rather an active partisan ?— A. I do not wish to be misunderstood as
to what I might say in that matter, but I will say that he was a very warm friend to
Mr. Baxter, and I regarded him as one of Baxter's chief advisers in the affairs of the
Q. Was the wording of the opinion, the so drawing it as to attempt to exclude the
jurisdiction of the circuit court, influenced in any way by the desire to preveut mar-
tial law ?— A. There is no question but that the intention of framing the decision was
that the circuit court could not take jurisdiction.
Q. It was done on purpose to effect that ?— A. Yes, sir; it was, most emphatically.
Q. Was that idea put into the opiniou in order to prevent military disturbance or to
preserve quiet?— A. Our idea at that time was that if the opinion went on file it
would preserve the peace of the State, aud the opiniou was drawn with reference to
the then pending action in the circuit court. The object of filing it at that time was
to prevent any action on the part of the circuit court.
Q. Did you consider that you bad before you in that case any question as to the juris-
diction of the circuit court ? — A. We no doubt intended at that time to confine the de-
cision strictly to the case before us.
Q. What made you depart from that intention ? — A. The reason that actuated me
■was to preserve the peace and to avert any impending danger in the State.
Q. What do you know as to Judge Gregg being actuated by the same feeling ? — A.
I have a letter from Judge Gregg, but I dislike to produce it without first having a con-
versation with him, as the matter is oue of private correspondence between Judge
Gregg and myself.
Q. It was on this public subject ? — A. Yes ; I wrote to him and explained the reason
why it was desired to have the opinion and the appendix both. Several letters passed
between us. Judge Gregg said that while he desired so to restrict himself as not to
strike down any other case that might be pending, still he agreed with us that if the
fly-leaf would bridge over the emergency he was willing to have it go on file.
Judge Searle, in speaking of this decision, testifies as follows, page
Q. You heard Judge Bennett's testimony in regard to the kidnapping, &c. ? — A. Yes.
Q. Do you concur generally in that testimony '! — A. Yes: with the exception of two
or three things that are perhaps immaterial.
Q. Do you concur in his statement in reference to the disposition of the quo-ioarranto
case ? — A. Xot exactly.
Q. What was the question there submitted to the court? — A. It was as to whether
the petition for quo warranto should be filed or not.
Q. What was the question that was decided ? — A. The argument extended back to
the jurisdiction of the court, and the opinion of the court extended back still farther.
Q. I am asking for the announcement that was made. — A. It was that that was the
only question which should be considered.
Q. You meau as to whether the petition should be filed ? — A. Yes.
Q. What was the agreement in reference to the opinion — as to whether it was to con-
tain anything beyond that announcement — I mean as to what the opinion which was
to be written up afterward should contain ? — A. I think that the understanding at
that time was that the opinion was to contain uothing more than that question — that
is, that it should relate to nothing more than to that question. I do not know that
there was any special understanding in regard to it.
Q. When was the opinion to be tiled ? — A. It was to be filed when we met again, on
the 20th of November following.
Q. Were you to have had a consultation when you met ? — A. Yes.
Q. When you parted it was with the understanding that you would meet in Novem-
ber and have a consultation upon this opinion and file it ? — A. Yes.
Q. Was any such consultation ever had 1 — A. Those of us who agreed in Judge
Gregg's oral opinion, just before the court adjourned on this case, had some talk iu re-
gard to the opinion which should be written up, and the understanding seemed to be
that Judge Gregg should write up the opinion specially. It was also understood that
the rest of us were to write our views, and then when we met again in November were
to compare notes, so to speak.
Q. When you signed the opiuion was the fly-leaf attached to it ? — A. No, sir.
Q. After you went away who wrote to you to come back here ? — A. When the court
adjourned I was quite unwell, and I went North to rest. I received a telegram while
visiting my father's, near Rock Island, to hasten immediately to Atlanta, Illiuois ;
where some of my folks were. This telegram was simply on another telegram which
they had received from Mr. Wilshire, requiring me to come here immediately. I re-
mained there four or five days, and received another telegram from Mr. Wilshire, re-
questing me to come immediately to Little Rock. I immediately started for here, and
on the train I met Judge Stephenson, who stated that he had received a similar tele-
Q. That is all the communication which you had from here in reference to your
coming back ? — A. I believe That is all, except a letter from Judge < tregg, saying that
he did not desire to come ; that he had been requested to do so, and that he would write
his views and send them anywhere that I should be. Shortly afrer I arrived here he
sent his opinion to me, or to Judge Stephenson and me jointly, (I do not know which.)
I examined the opinion and signed it, and then handed it to Judge Stephenson. The
next day, about 9 o'clock in the morning, I was in the supreme-courtroom, when Judge
Stephenson and Judge Caldwell came into the room with this opinion. They consulted
in regard to the matter and wrote something, and Judge Caldwell and Judge Stephen-
son appeared to be agreed. Then they spoke to me and asked me to hear what they
had written. They read it to me and asked me what I thought of it. I told them that
I regarded it as dictum; that 1 thought it unnecessary; that the rest of the opinion
was substantially the same as that, and that there was enough dictum iu the opinion
without that. But they talked over the necessity of making the thing strong and con-
densing it, and of giving a kind of summary of the opinion, aad I finally agreed to it.
The writing was copied by Judge Stephenson or myself, and was sent by myself to
Judge Gregg. I inclosed it iu a letter, wliirh I had already written on other subjects,
to Judge* Gregg. I put this thing as copied into the letter, and then I made an addi-
tional .statement in regard to it.
Q. What was the motive that induced you to agree to that dictum? — A. Policy, to
Q. Do you agree substantially with Judge Gregg in regard to the reason for putting
in that dictum and for- tiling the opinion as that time .' — A. Yes, sir; substantially.
Judge Bennett testifies as follows, page 257 :
By Mr. Kice :
Q. When was the opinion to be prepared in writing ? — A. It was to be prepared at
the next meeting of the court.
Q. When was that? — A. I think that that was in tire June term. I think we ad-
journed to a set day. Our regular term was on the first Monday of December, and I
think it was on the Monday or two before that first Monday.
Q. Was it agreed as to who was to write the opinion ? — A. Yes ; it was generally
understood that Judge Gregg, by his being appointed and delegated to announce tin-
oral opinion, would prepare the written opinion, and I .supposed it would be brought
in at our next meeting for general consultation.
Q. Was the opinion presented at an earlier day ? — A. I do not know that it was ever
presented in court. I never saw it presented in consultation at all.
Q. Did you ever sign the opinion ? — A. No, sir.
Q. Did you ever refuse to sign it ? — A. No, sir ; it never was presented to me for my
Q. Was it ever presented in court for action ? — A. Never, that I know of.
Q. You have been on the bench at every meeting of the court since ? — A. Yes.
Q. It was simply filed iu the clerk's office ? — A. I do not know whether it was filed
or not ; I do not know anything' about it. I think I saw the manuscript of it ouce
when a question of controversy as to what it contained brought it out; but as to
whether it was tiled in the clerk's office or not I do not know. The first I knew of its
being iu existence was when it was published in the papers.
By Mr. Sayler :
Q. How many judges of the supreme court are there ? — A. Five.
By Mr. Kice :
Q. The appointed consultation over the opinion drawn by Judge Gregg was never
had ? — A. No, sir. It was, as I consider, a general assent. I did not suppose that any
announcement would be sent forth as to the opinion of the court without a fair and
general consultation. Such a thing had never been done before, and it was my under-
standing that the written opinion was to be prepared and ready for submission to the
whole court, or to the majority that had coincided with the oral opinion, at the ad-
journed term of the court, and not before.
Q. Did you concur iu that opinion, and would you have signed it if it had been sub-
mitted to you ? — A. No, sir.
I will read a letter from Judge Gregg to the other two judges wliicb.
was put in evidence, page 320 :
Fayettevii.i.e, Ark., September 18, 1873.
Dear Judges : Your letter did not reach me soon as it ought to have come.
I inclose what you suggest. I aimed to be sufficiently explicit before on that sub-
ject, and, as you intimate, I think none but the most prejudiced could misconstrue our
intention. But perhaps it is better as you suggest. I care nothing about the form of
words conveying the idea that this question belongs to another department and not
the courts, only I did not want to use undignified or unbecoming language, aud such
as would indicate that we were attempting especially to strike down a case not yet
before us ; but you are very right, in matters of so much importance, to require that
the language be so plain that none can mistake.
You are guilty of gross flattery in your kind note. I was not at all satisfied with
what I had written when I mailed it to you. It is certainly not worthy of the occa-
sion, but I intended to revise and rewrite it before we allowed it to go to press. I
then thought, and still hope, it will answer a temporary emergency and save me a
hard, expensive trip, and at a time when my health is not very good, Ac.
Hons. E. J. Searle and M. L. Stephenson'.
Judge Gregg says in this letter that Judge Stephenson is guilty of
gross flattery. I am glad that he was, for if any man could Hatter a
judge who was guilty of such conduct, he was the mau to engage in
Now, here is a letter from Baxter to one of the judges :
Little Rock, Ark., July 16, 1873.
My Deak Judge: I Lad a long interview last evening with our mutual friend, Judge
Caldwell, in whose judgment I have unbounded confidence ; and, among other things,
he suggested that the opinion in the quo-warranto case ought to be prepared, signed,
and filed before the meeting of the Pulaski circuit court in the fall. I hope you will
give (as I know you will) due attention to this matter ; and if convenient for you to
do so, I hope you will at once call the attention of Judge Gregg to this matter.
The enemy are as bitter as ever, and the last dodge is an open declaration by McClure
and the reform central committee in favor of a constitutional convention. I shall be
pleased to hear from you often.
Now, this is the opinion thus obtained that has been talked of all
over this land as settling the question of jurisdiction of the judicial tri-
bunals of Arkansas — a decision that was rendered in a military camp,
when a party to the suit, and who was to be affected by it, was sur-
rounded by armed men, with a proclamation of martial law in his pocket,
bullying that court into acquiescence or obedience to his dictation,
threatening the court with destruction almost if it did not decide as he
dictated. Under those circumstances, the court rendered a decision
which cannot be sustained upon any principle of law ; and that is, that, if
Mr. Brooks saw fit not to 'contest Mr. Baxter's election, his failure to do
so precluded the sovereign people of the State from reclaiming to them-
selves a franchise which was usurped.
A decision which is a disgrace to any court upon earth, was there
rendered, and the only excuse for it is that it was compelled by
force, and the court yielded through fear. Two of the judges who con-
curred in this decision were gentlemen who had been counted in in the
same manner as Baxter had been, so that only one of the regularly-
elected judges decided the case. It has been said — and even the
Attorney-General of the United States, who did not know of those sur-
roundings, has said — that that was a well-cousidered opinion. Yes, it
was the best-considered opiuion that I ever heard of. It was considered
by the judges, each of them at home, or traveling over the country;
it was considered by Baxter's attorneys ; it was considered by Baxter
himself ; and then it received a very considerable amount of considera-
tion from that intermeddling district judge, Henry Clay Caldwell. It
was a well-considered opiuion. It was a. disgrace to any country. And
when they talk about bad government and about bad things that have
occurred in Arkansas, I say that this eclipses all of them. The case is
on trial in the supreme court, and a majority of the judges are counsel-
ing, and corresponding, and intriguing with one of the parties and his
attorneys and friends — counseling, not as to how they shall arrive at an
honest decision of the case, but as to how they shall so word their decision
as to cut off the jurisdiction of any other tribunal and deprive Mr. Brooks
of his right to apply for a remedy in a court of justice. That is a rare
specimen of the decisions of the courts which we used to read about in
youth, and which were spoken of as some of the great bulwarks of lib-
erty, and of the rights of the people. Here is a court supposed to be
impartial, or which ought to have been impartial, trying this case. The
judges never held a consultation upon the opinion, as the testimony
shows. Judge Gregg wrote it out, and then they handed it around and
signed it just as they would a circular-letter. Two of the judges had
beeu counted in like Baxter, so that there was only one of them who
can really be said to have fairly decided the case — the chief-justice dis-
senting, and Judge Bennett took no action whatever in it. But there
are these three judges with Baxter writing to them, and Baxter's law-
yers writing to them, and Judge Caldwell and Baxter's partisan friends
writing to them, and caucusing and corresponding together, the whole
resulting in what this testimony shows to be a programme decision.
To say that that is a judgment which is to be taken as a construction of
the constitution of the State is simply preposterous. It is a sad com-
ment on the kind of good government which the gentlemen on the other
side say has dawned upon the people of Arkansas — a government where
one of the parties to a litigation runs the court and dictates what the
judges shall decide. Added to that was a United States district judge
holding a high and responsible position, whose duty it was to maintain
the integrity of the law, and who, instead of doing so, commenced in-
triguing with the judicial department of the State, commenced putting
up schemes that were to be ground through in the form of a judicial
decision, commenced corrupting the judiciary, and I may say that the
suspicious will always believe that when he started out on that mission he
was only doing unto others as he would that others should do unto him.
When a judge will engage in corrupting other tribunals there is ground
to suspect that the procuress is not more virtuous thau the procured.
Here is the result of their disgraceful labor. Here is this add u ion,
this appendix to the decision of the supreme court, (page 145.) Upon this
they base their claim that the judgment of the circuit court is a nullity.
It reads as follows:
Under this constitution the determination of the question as to whether a person
exercising the office of governor has been duly elected or not is vested exclusively in
the general assembly of the State, and neither this nor any other State court, has juris-
diction to try a suit in relation to such contest, be the mode or form what it may ;
whether at the suit of the attorney-general, or on the relation of a claimant through
him, or by an individual alone claiming a right to the office. Such issue should be
made before the general assembly. It is their duty to decide, and no other tribunal
can determine that question.
That is the fly-leaf written by Judge Caldwell. And to show that
they were acting very honestly and disinterestedly in the matter, he got
Judge Stephenson to copy it, and Judge Stephenson sent it up to Judge
Gregg and got him to copy it ; and then, as they could not incorporate
it into the opinion, they pinned it on to the opinion, and filed it; and
all those certified copies of the opinion which have come to Washington
have come with that appendix to it, as if it was part of the original
decision. There never was such a prostitution of justice developed in
any case where a party litigant, with his attorneys, friends, and adher-
ents, connived with the majority of the court, aud put up such a weak
subterfuge, worked up a scheme of this kind to thwartjustice, and cor-
ruptly cut off the jurisdiction of another court.
PROHIBITION CASE OF. BEERY VS. WHEELER IN SUPREME COURT.
About the time Brooks brought his suit in the circuit court against
Baxter, Berry brought an action in that; court against Wheeler to
recover the office of State auditor, which was an executive office under
the constitution, and stood the same in that respect as the office of gov-
ernor. To this suit Wheeler filed a demurrer to the jurisdiction of the
court, accompanied by an answer upon the merits. Soon alter the quo-
warranto case was decided, Judge Whytock overruled the demurrer,
and decided that lie had jurisdiction of the case. It stood upon the issue
of fact raised by the answer, and Wheeler applied to the supreme court
for a writ of prohibition against Judge Whytock and Berry to prevent
further proceedings in the case. The writ was awarded by three judges,
the chief-justice and the two " comited-in " judges, the odds being
against the legally-installed judges ; Judge Gregg, the champion of the
opinion in the quo-warranto case, one of the gentlemen of the fly-leaf
notoriety in connection with that remarkable opinion, disregarding his
own dictum, reversed his decision (being a friend of Berry's) and held
in the prohibition case that the circuit court had jurisdiction.
I have never attached any importance to the supposed decision in this
case; but as it seems to be relied upon, I will say a few words upon it.
The awarding of a writ of prohibition is not a judgment nor an adjudi-
cation of the questions upon which the application for the writ is founded.
It is no more an adjudication than the granting of an injunction by a
court in term-time upon an application made for that purpose ; it is to
that extent a decision of that question ; but it is only a preliminary,
prima-facie decision, such as the court must make when it determines
to award the writ. The court may decide the same way in the final hear-
ing, or it may decide exactly the reverse, and is not in the least embar-
rassed by the fact of having awarded the writ. In England it was the
practice for the court that had been prohibited to suspend further action
in the case until the questions involved in the petition for the writ could
be adjudicated by the court that awarded it. And to present a case
upon which the court could make an adjudication and render a judgment,
the practice allowed the party suing out the w r rit to institute an action
against the opposing party, charging by fiction that he had disregarded
the writ. This allegation (being only a fiction) was not traversable;
and upon the issue thus presented between the parties to the original
suit the question was heard and determined; and that determination
amounted to an adjudication — it was a judgment.
Section 4, article 7, of the constitution confers upon the supreme
court jurisdiction to issue remedial writs and hear and I determine the
same, showing that the awarding of a writ of prohibition was not
regarded as an adjudication, but the determination upon the hearing is the
adjudication, and that authority is expressly given by the constitution.
in the case we are considering the writ was issued, but it was never
heard or determined; it still stands upon the docket as it stood when it
was issued; therefore, so far as any importance is attached to the prohi-
bition case, no decision that rises to the dignity of an authority has been
made in that case.
THE QUO-WARRANTO AND PROHIBITION CASE NOT AUTHORITY.
Judge Pratt once said in the court of errors in New York that the de-
cisions of the court were not law, they were only evidence of what the
law was, and the strength of their evidence depended upon the uuauitn-
ity of the court, the uniformity of the decisions, the soundness of the
reasoning, and the fair, deliberate, and impartial consideration that
was given to the question ; and that the absence of any of these greatly
weakened the force of the decision as an authority. Tested by this rule
the opinion in the quo-warranto case and the awarding of the writ of
prohibition are utterly valueless upon the question as to whether or not
the courts had jurisdiction of this case, and especially whether or not
the circuit court had jurisdiction of the case of Brooks against Baxter,
in which the judgment of ouster was rendered.
That leaves the question without any authoritative adjudication, ex
cept the decision of Judge Whytock, rendered at the time of overruling
the demurrer in the case of Berry vs. Wheeler, in which he held that
the circuit court had jurisdiction. This opinion was published in the
daily papers and was well known to be the view of the circuit judge at
the time the case of Brooks against Baxter was submitted on demurrer.
THE QUESTION PROPERLY BELONGS TO THE COURTS.
The question of the result of an election to an elective office properly
belongs to the courts of the State. This was the opinion of the Attorney-
General, as shown by his telegram to Mr. Baxter, which will be found
in House Ex. Doc. No. 229, page 4, and reads as follows :
Department op Justice,
Washington, April 16, 1874.
Hon. Elisha Baxter,
Little Rock, Ark. :
I am instructed by the President to say in answer to your dispatch to him of yester-
day, asking lor the support of the General Government to sustain you in efforts to
maintain the rightful government in the State of Arkansas, that, in the first place, your
call is not made in conformity with the Constitution and laws of the United States,
and in the second place, as your controversy relates to your right to hold a State office,
its adjudication, unless a case is made under the so-called enforcement acts for Federal
jurisdiction, belongs to the State courts.
If the decision of which you complain is erroneous there appears to be no reason
why it may not be reviewed, and a correct decision obtained in the supreme court of
GEORGE H, WILLIAMS.
In Dillon on Municipal Corporations, vol. 1, page 263, section 141,
we find the following :
Common-law courts of general and original jurisdiction have the admitted power to
inquire into the regularity of elections, corporate and others, by quo warranto, on an
information in that nature, and in certain cases, by mandamus.
The principle is, that the jurisdiction of the courts remains, unless it appears, with
unequivocal certainty, that the legislature intended to take it away.
Cooley, in his work on constitutional limitations, page 623, uses the
following language :
As the election-officers perform for the most part ministerial functions only, their
returns, and the certificates of election which are issued upon them, are not conclusive
in favor of the officers who would thereby appear to be chosen, but the final decision
must rest with the courts. This is the general rule, and the exceptions are cf those
cases where the law under which the canvass is made declares the decision conclusive,
or where a special statutory board is established, with powers of final decision. And
it matters not how high and important the office, an election to it is only made by the
candidate receiving the requisite plurality of the legal votes cast; and if any one
without having received such plurality intrudes into an office, whether with or with-
out a certificate of election, the courts have jurisdiction to oust as well as to punish
him for such intrusion.
In the case of The People vs. Cook, 4th Selden, page 83, the court use
the following language :
In The People vs. Vail, (20 Wend., 12,) the case of The People vs. Ferguson is ex-
pressly recognized as sound law, aud Brouson, J., says that in those legislative
bodies which have the power to judge of their own members, it is the settled practice,
where the right of the sitting member is called in question, to look beyond the cer-
tificates of the returning officers, "And I think," he observes, " a court and jury with
better means of arriving at the truth may pursue the same course." * * *
Nor is there any danger to be apprehended to the security of our institutions by pur-
suing this practice ; the right to an office is no higher than the right to life, liberty, or
property ; there is no principle that should withdraw the first from the cognizance of
a court and jury to the exclusion of the last. Both will indeed be safe under the
administration of the ordinary tribunals.
The same doctrine is expressly held in the 17th Ark., 407, to which I
have referred. Also in the case of The People vs. Holden, 28th Cal.,
page 123, and a vast number of other authorities to which I might re-
fer. I do not know of a State iu which the jurisdiction of contested
elections and usurpation iu office growing out of elections has been taken
from the courts; and the King's Bench has exercised this jurisdiction
for more than a centurv.
CIRCUIT COURTS OF ARKANSAS ARE SUPERIOR COURTS.
The circuit courts of Arkansas are superior courts of general, original
jurisdiction. It is true they are called inferior courts, because they are
inferior to the supreme court, but it is their jurisdiction and not their
name that determines their character.
Section 5, of article 7, constitution, provides that the circuit courts
should have the same jurisdiction that they then possessed, and gave the
legislature power to change their jurisdiction. The statute in force at the
adoption of the constitution of 1868, and which fixed the jurisdiction of
the circuit court, provided that they should have exclusive original juris-
diction in all cases, real, personal, and mixed, which shall not be cogniz-
able before the county and probate courts and courts of justice of the
Section 18 of the civil code of practice, as amended, provided as fol-
Circuit courts have original jurisdiction in all actions and proceedings for the en-
forcement of civil rights or the redress of civil wrongs, except when exclusive juris-
diction is given to other courts. Wheu such proceedings are not expressly provided
for in this code or by statute, the same may be had and conducted in accordance with
the course, rules, and jurisdiction of the common law.
Section 522 provides that in lieu of quo warranto and information in
the nature of quo warranto a civil action may be brought to prevent the
usurpation of an office or franchise.
From which it will be seen that the circuit courts of Arkansas cor-
respond with the court of King's Bench, iu England.
In Beaubien vs. Brinckerhoff, (2d Scam.,) the supreme court of Illinois
use the following language:
The circuit courts are the only superior courts in the State that possess original and
unlimited jurisdiction. They exercise, within their respective counties, all the powers
and jurisdiction of the courts of King's Bench and common pleas in England ; and,
although these courts are inferior to the supreme court, because appeals and writs of
error lie from their decisions to the superior court, yet this circumstance does not con-
stitute them inferior courts in the common-law sense of the term. Courts not of
record are denominated inferior courts, because if their proceedings are questioned in
the superior courts, they must specially show that they acted within their jurisdiction.
The circuit courts are pre-eminently the superior courts of this State.
In ex parte Watkins, (3 Peters, 205,) the Supreme Court use the follow-
ing language :
All courts from which an appeal lies, are inferior courts in relation to the appellate
courts before which their judgments may be carried, but they are not therefore infe-
rior courts in the technical sense of those words.
In view of these authorities, I cannot conceive how gentlemen can
call the circuit courts of Arkansas courts of inferior or limited jurisdic-
Mr. Lowe. It was not used on this side at all.
Mr. Bice. It was used directly in the briefs on file in this case.
The CHAIRMAN. As we understand the theory of your courts in
Arkansas, I do not think we shall have any difficulty in regarding the
ciredit court as a court of superior jurisdiction in the legal sense of
Mr. Baxter. There is no doubt about it. I will here take occasion
to say that if I ever used the term of inferior courts, in reference to the
circuit court of Arkansas, it was used in comparison only with the
THE JUDGMENT OF THE CIRCUIT COURT WAS NOT VOID EVEN IF THE
COURT HAD NO JURISDICTION IN THIS CASE.
Mr. Eice. I next submit the proposition, that inasmuch as the Pu-
laski circuit court was a superior court of general original jurisdiction,
and questions growing out of contested elections and usurpation in
office were within the general scope of the jurisdiction of this court,
a judgment rendered in such a case is never void, but is valid and
binding, and a protection to all persons acting under it, until it is
reversed, even if in that particular case the court had no jurisdiction.
The Chairman. You claim that there may be such a thing as a
court of that character, taking cognizance of a question over which
it has no jurisdiction, and that if its action is erroneous, it can be re-
Mr. Eice. 1 go farther than that. I take the ground that it is not
void and cannot be disregarded, and that all parties are bound to
respect it until it is reversed.
Mr. Lowe. There is no doubt at all about that, if the court had
Mr. Eice. I say that there is no doubt about it, even if the court had not
jurisdiction. That is where we differ. I take this position, that not-
withstanding the general rule that the decisions of a court that has no
jurisdiction are void, still when a court of general jurisdiction decides a
matter within the general scope of its jurisdiction, when, in fact, it has
no jurisdiction in that particular case, yet the judgment is not void, but
is binding until it is reversed, although it may be decided afterward on
appeal that the court had uo jurisdiction. There was a certain class of
cases cognizable under the general jurisdiction of the court of King's
Bench in England. Afterward certain statutes were passed excepting
certain persons and cases from that jurisdiction, and making the juris-
diction local in the local court. Still the court of King's Bench took juris-
diction of those cases, and it was there decided (and the uniform current
of authorities sustained the decision) that if it is a question within the
general scope of the jurisdiction of the court, the tact as to whether
certain cases or persons were privileged and exempt from its jurisdiction
or were embraced in the exclusive jurisdiction of some other court, is a
question of construction $ and the court must make that construction,
and its' decision in giving the construction is not void, although it may
In the case of Borden vs. The State, 11th Ark., 519, which was decided
upon the question as to what judgments were void, the court review
the whole doctrine and expressly decide that the judgments of a court
of general jurisdiction upon a matter within the general scope of their
jurisdiction is not void even though the court did not have jurisdiction
of that particular case. They cite approvingly Priggs vs. Adams, 2 Silk.,
674. and use this language :
Then the act of Parliament erected the court of conscience in Bristol, provided that
if any action shall he brought in any of the courts of Westminster upon any cause of
action arising in Bristol, aud it appear upon trial to be under forty shillings, that no
judgment shall be entered for the plaintiff; and if one be entered it should be void.
Nevertheless the court of King's Bench held that the judgment in the common pleas
in this case for rive shillings on such a cause of actiou was not a nullity, but was only
voidable by plea on error; because the common pleas was a superior court. In this
case the want of jurisdiction of the subject-matter was apparent on the face of the
record, and yet the judgment was held not to be a nullity. * *
Again, on page 547, the court proceeds :
The result of tbis mode of reasoning, then, from the premises that superior courts
are invested by the law with the power to decide upon their own jurisdiction, is sim-
ply the same that is announced by the authorities that we have first cited, that the
judgment of such courts are not void but only voidable by plea on error ; and this is
in exact harmony with the other doctrine, that the protection in regard to the judges
of these courts is absolute and universal.
This is a decision of our own court, of longstanding, which has never
been overruled, and it seems to me that it ought to have much weight
in determining the validity of the judgments of our circuit court.
In Vermont what correspond to our circuit courts are known as
county courts. A case had been taken from one of these courts to the
supreme court. After it was so taken to the supreme court a statute
was passed which, it was claimed, took the jurisdiction from the supreme
court and vested it in the county court. The supreme court rendered a
judgment, which was not set aside or reversed, and the defendant, Hall,
was imprisoned upon an execution issued upon this judgment. He
brought suit for false imprisonment, and Walbridge, the defendant in
this suit, pleaded the judgment and execution in bar. Hall contended
that they were no protection, as the court had no jurisdiction to render
the judgment. (See Walbridge vs. Hall, 3 Vermont, 119.) The court,
in their decision, use this language:
If the proceedings of this court, in rendering the judgment and awarding execution
under which the defendant justifies, are void, then neither the court nor the parties are
protected by them, but are trespassers, and are liable, as such, to the parties injured;
and if we render a judgment for the plaintiff we must subscribe to this position, how-
ever unpalatable it may be. We believe, however, that the highest tribunals of law
and equity in this State cannot be impeached in that way. The judgments of a supe-
rior court are never considered void, and the judges of a superior court are never liable
for acts done in a judicial capacity.
When courts of special or limited jurisdiction exceed their powers their whole pro-
ceedings are coram nonjudiee, and all concerned in such void proceedings are trespassers.
But this principle has never been and cannot be extended to superior tribunals, and
especially those which have the ultimate jurisdiction in all cases arising in other
courts. If the judgment here complained of was either erroneous or irregular, the
court, on a proper application, would set it aside ; but, until set aside, it is to be con-
sidered a regular judgment for every purpose.
In Yates vs. Lansing, 5 Johnson, Judge Kent, in delivering the
opinion of the court, says:
Where courts of special and limited jurisdiction exceed their powers, the whole pro-
ceeding is coram non judice, and all concerned in such void proceedings are held to be
liable in trespass ; but I believe this doctrine has never been carried so far as to justify
a suit against a member of the superior courts of general jurisdiction for any act
done by them in a judicial capacity. There is no such case, or decision, which I have
met with, and I find the doctrine to be decidedly otherwise.
In the ease to which I have already referred, (ex parte Watkins, 3
Peters, 205,) the court say that —
The courts of the United States are all of limited jurisdiction, and their proceedings
are erroneous if their jurisdiction is not shown upon them. Judgments rendered 111
s •< ii cases may certainly be reversed, but this court is not prepared to say that they
are absolute nullities, which may be totally disregarded.
Now, if the judgment rendered against Baxter is a protection to
Judge Whytock, if lie is not liable for acts done under it, it must arise
from the fact that the judgment is not void; that it is valid until re-
versed; if this is so, if it is valid as to Judge Whytock, it is valid as to
all mankind, so long - as it remains unreversed.
There is another view of this ease. Mr. Baxter appeared in the cir-
cuit court, and filed a demurrer to the jurisdiction of that court, by
which he tendered an issue of law for the decision of the court. The
court was bound to decide that issue, and it was his duty to decide it
according to his honest convictions of the law.
That issue is one that the law authorizes to be made before him, and
he certainly has jurisdiction to try and decide that issue, and when he
does decide it, whether correctly or not, if he decides wrong the deci-
sion is not void, because he has jurisdiction to make the decision ; it is
only voidable for error, and while it remains unreversed it is the law of
that case, and the judgment in the case follows as a necessary conse-
quence, and is not of itself even erroneous, based upon the decision on
the question of law presented by the demurrer. Therefore, if the case has
been decided incorrectly the error is not in the judgment, but is in the
decision of the question of law arising on the demurrer, and as the court
had jurisdiction to decide that question, neither the decision upon that
point, nor the judgment rendered upon and necessarily resulting from
that decision, can be treated as a nullity, but are valid and binding until
reversed. Any other view of the subject would place the judge in a
singular attitude. If he decided that he had no jurisdiction, no harm
could come to him from that decision ; but he was compelled to decide,
and if he honestly believed that he had jurisdiction, and decided accord-
ing to his convictions, if he erred he would be liable in trespass for acts
done under that judgment.
It seems to me that such cannot be the law, either upon principle or
But our own court has again decided this question. After Brooks was
in possession of the franchise of the office of governor, under the decisiou
of the circuit court, and in possession of the archives, and was adminis-
tering the government, Baxter interposed an ineffectual resistance to
the government so administered by Brooks, whereby it became neces-
sary for Mr. Brooks to keep a military force to protect the State-house
and archives from Baxter's insurrectionary assemblage.
To defray these expenses Mr. Brooks, as governor of Arkansas, made
a requisition on the treasurer, under an existing statute, for a certain
sum for that purpose. Colonel Page, the treasurer, refused to honor the
requisition, and Mr. Brooks applied to the supreme court for a man-
damus to compel him to do so.
Upon the trial of this case Mr. Brooks's attorneys produced the judg-
ment of the Pulaski circuit court in the case of Brooks against Baxter
as evidence of his right to make the requisition as governor. The court
decided (as in the case in the 11th Arkansas, to which I have referred)
that the judgment was valid and binding until reversed, and compelled
the treasurer to houor the requisition. The attorney-general says, in
his opinion, that the treasurer had previously recognized Mr. Brooks as
governor, and that his refusal in this instance was evidently for the
purpose of making a case upon which a decision could be obtained, and
that such a decision was not authority. This conclusion of the attorney-
general is not only erroneous, but it is wholly unsustained by the facts.
Colonel Page recognized the fact that there was a controversy about
the office of governor, and while he fully recognized Mr. Brooks he was
unwilling to involve his bondsmen by paying out a large sum of money
upon his own judgment as to how that controversy would result, and
consequently declined to act until such proceedings were taken as
would amount to a protection to him and his securities in any event,
and Mr. Brooks sued out the mandamus because he needed and was
compelled to have the money.
The attorney-general says also, in that opinion, that the supreme
court of Arkansas had rendered a decision at variance with this, grow-
ing out of the election matters in Arkansas, and that the government
had a right in such a case to decide which decision it would recog-
nize as authority; but the facts do not sustain this conclusion; the
decision upon the mandamus was not a decision upon the election, or
upon any matter growing out of it; it was simply a decision in harmony
with the authorities in that State, and sustained by the decisions of
other States, and in England, to the effect that the judgments of a
superior court of general jurisdiction were not void, but ivere valid and
binding until reversed.
The judgment of the circuit court ousting Baxter and deciding that
Mr. Brooks was entitled to the office of governor, and the decision of
the supreme court in the mandamus case, deciding that the judgment
of the circuit court was binding and valid until it was reversed, were not
presented to the executive department of the government as authori-
ties merely, as evidence of what the law was, but as an adjudication
and settlement of Mr. Brooks's right to the office, so long at least as the
judgment of the circuit court remained unreversed, and as an adjudica-
tion that Baxter no longer possessed any color of official authority.
This adjudication was binding alike upon the parties — the Federal
authorities and all persons whatsoever — and no department of the
Government of the United States had the power to set it aside, nor the
ight to disregard it.
CIRCUIT COURT HAD JURISDICTION.
But we insist that the Pulaski circuit court had ample and complete
jurisdiction to try the ease of Brooks against Baxter, involving the
right to the office of governor, and to render the judgment therein.
We have seen that the trial of a case involving an election to an
office properly belongs to the courts; the authorities to which I have
referred settle that point ; there are many other authorities to the same
eflcct. 1 will refer to the opinion of Judge Whiton in the case of
Attorney-General vs. Barstow, 4 Wis., page 700.
We have seen also that the circuit courts are superior courts of gen-
eral original jurisdiction. The subjects of contested elections and
usurpation of office are within the general scope of their jurisdiction.
Besides, the legislature, under the provisions of the constitution, has
expressly conferred upon then under their general jurisdiction complete
jurisdiction over the subject of usurpation in office in State as well as
Section 522, Civil Code, provides that —
In lieu of tlic writs ni scire facias ami quo warranto, or information iu the nature of
i/uo warranto, actions, by proceedings at law, may be brought to vacate or repeal char-
ters, and prevent tin' usurpation of an office or franchise.
Section 525 provides that —
Whenever a person usurps an office or franchise to which he is not entitled by law,
an action by proceedings ;it law may be instituted against him either by the State or
tin- party entitled to the office <>r franchise, to prevent the usurper from exercising the
office or franchise.
Section 527 provides that-
For usurpation of other than county offices or franchises the action by the State
shall be instituted and prosecuted by the attorney-general.
By which it will he seen that State offices are embraced.
But it has been insisted in argument that these proceedings did not ap-
ply to a person who took the office upon a certificate or declaration at the
commencement of the term, but only to one who usurped an office 1 hat had
been occupied by another. But as this action was given in lieu of quo
warranto and information in the nature of quo warranto, it follows that
all cases which could be tried by either of those proceedings are em-
braced within the remedy which was substituted for them, and it was
peculiarly the province of those proceedings to oust a usurper who
attempted to discharge the duties of an office to which he was not legally
elected. These provisions of the Arkansas code are taken from the Ken-
tucky code, and that was taken from the New York code, so that our
law is similar to that of New York.
From all of which it is perfectly apparent that the circuit court had
complete jurisdiction over the subject-matter of the suit of Brooks
against Baxter, unless that jurisdiction is taken away by section 19 of
article 6 of the constitution. We have already given our reasons for
denying that the section referred to confers any judicial power on the
legislature ; but, if it did, the presumption would be that the framers of
the constitution intended it as cumulative, having jurisdiction concur-
rently with the courts but not exclusive of them.
The courts have jurisdiction, concurrent at least, with the legislature,
unless the section referred to expressly takes that jurisdiction from
them ; therefore we should gather as far as we cau what the intention
of the framers was in that respect.
The constitution of 1830, (section 3, article 5,) after providing for the
counting of the votes, and declaring the result in the exact words of the
constitution of 1868 upon that subject, provides that —
Contested elections for governor shall be determined by both houses of the general
assembly, in such manner as shall be prescribed by law.
Now, if the legislature had believed that this language gave the legis-
lature exclusive jurisdiction of these contests, it would have provided in
the statute putting this provision iu force a certain and uniform remedy
such as is always expected to be found in a judicial tribunal, but instead
of that it left it optional with the legislature to entertain the contest or
not in its discretion; or, in other words, the legislature could, if it chose,
entertain the contest, or, if unwilling to be burdened with the investiga-
tion, it could refuse to entertain it, and remand the party to the courts
of the country, which the legislature evidently regarded as having juris-
The passing of this statute amounted to a legislative construction of
that language. Afterwards the legislature passed an act providing
that, if a vacancy occurred in the office of governor, when more than
eighteen months of the term was unexpired, the president of the senate
should call a special election to elect a governor. Section 85 of the act
(Gold's Big., 477) provides that if such election is contested it shall be
decided by the supreme court, which amounted to another legislative
construction of section 3, article 5, to the effect that the jurisdiction in
contested-election cases was not vested exclusively in the legislature.
Section 19 of article 6 of the constitution of 1868 was borrowed from
section 3, article 5, of the constitution of 1836, and as the convention
took it after the language had received that legislative construction,
we are bound to presume that they used the language as thus con-
strued. This view of the case is confirmed by the fact that the legisla-
ture at the first sessiou after the adoption of the constitution of 1868,
many of whose members were in the convention, especially conferred
this jurisdiction on the courts, which they would have known was un-
constitutional if they had construed section 19, article G, as conferring
exclusive jurisdiction on the legislature.
There is nothing in the language of section 19, article 6, or the section
from which it was borrowed, which tends in the least to show that the
framers intended to vest exclusive jurisdiction in the legislature, unless
it arises from the use of the word determine as used in the sentence
which provides that " contested elections shall be determined by both
I have already said that the word determine was used more in a par-
liamentary than judicial sense; it seems also to be so used in the consti-
tution of 1836. It becomes necessary to ascertain what meaning was
given to it when used in a judicial sense.
The constitution of 1836 says that contested elections shall be deter-
mined by the legislature, &c, from which it is claimed that no other
tribunal had any jurisdiction in such cases ; yet in section 2, article 6, of
the same constitution it is provided that the supreme court shall have
jurisdiction to issue writs of error and supersedeas, certiorari and habeas
corpus, mandamus and quo warranto, and other remedial writs, and hear
and determine the same. Now if the use of the word det\ rmine confers
exclusive jurisdiction on the legislature in contested-election cases, then
the same word confers exclusive jurisdiction on the supreme court in all
cases of remedial writs ; yet it has never been construed to have that
effect, and there is not a court in the State that does not exercise some
of that enumerated jurisdiction, and it has been sanctioned by all the
courts ever since the State was organized.
The language of section 19, article 6, of the constitution of 1868, upon
contested elections, was borrowed from the constitution of 1836. The
meaning and significance with which the framers of that constitution
used the word determine, as shown by the use of the same word in the
same instrument in conferring on the supreme court jurisdiction over
remedial writs, and as interpreted by the legislature in the two acts I
have cited, was also borrowed with the language, and when that word
was used in the constitution of 1868 it was used simply to confer upon
the legislature the power to try contested elections, but was never used
or intended to deprive the usual and proper tribunals of their jurisdic-
tion over that subject. The same language is used in the constitution
of 1868, in conferring jurisdiction upon the supreme court in cases of
remedial writs, but it was not used with the intention of depriving the
other courts of jurisdiction over those writs, and has never been under-
stood to have that effect ; the other courts daily exercise that jurisdic-
tion. That language is used in this connection, to confer jurisdiction
upon the supreme court, to be exercised concurrently with the other
courts, within the scope of whose general jurisdiction this class of cases
The word determine, as applied to the supreme court, in cases of reme-
dial writs, or as applied to the legislature, in cases of contest, has no
negative meaning whatever, and is not used in that sense.
We challenge the other side to produce a respectable authority upon
earth that sustains the assumption that section 19 of article 6 of the
constitution deprived the circuit court of its jurisdiction over the case
of 1 books against Baxter. But we will produce authorities to show that
such language can never deprive a superior court of its jurisdiction ;
even negative words will not ordinarily have that effect.
I refer to and adopt so much of the opinion of Judge Whytock, in
the case of Berry vs. Wheeler, (to which 1 have referred,) and the author-
ities there cited, as bears upon this point, which is as follows :
The general and elementary rules applicable to the construction of constitutions
and statutes arc the same (Dwarris on Statutes and Constitutions, Potter's ed., chap.
19, p. 654.)
Judge Dillon, in his treatise on Municipal Corporations, discussing the subject, thus
deduces the rule in regard to these special remedies: "The principle is that, tin- juris-
diction of the courts remains, unless it appears with unequivocal certainty that the
legislature intended to take it away." "A provision that no court should take cogni-
zance of election cases by quo warranto, &c, would doubtless divest the jurisdiction
of the judicial tribunals, and so perhaps of a provision that a council should have the
sole or the final power of deciding elections." Hence Judge Dillon remarks that pro-
visions in city charters to the effect that the common council of cities "shall be the
judge of the, qualifications, or of the qualification and election of its own members,"
will he construed to lie a cumulative or primary tribunal ouly — not an exclusive one.
(Dillon's Municipal Rep., sections 141 and 715.)
riie rule as thus explained is supported by the, best English authorities. In the
ease of Rex vs. Morely, an early one, (2 Bur., 1040,) Lord Mansfield presiding, the stat-
ute was in these words : " No other court shall intermeddle with any cause or causes
named in the statutes, but they shall be finally determined in the quarter sessions
only." The court said: " The jurisdiction of this court is not taken away unless
there lie express words to take it away." In another early case (1 Holt, N. P., 147.) a
similar statute was construed in like manner. The same rule was announced in chan-
cery, (2 Mylne and Craig, 613.) In Holt, N. P., defendant's counsel insisted that a
special remedy having been provided by statute, this ousted the jurisdiction of the
court. The court did not agree with him.
In Iowa it was held, (in the State vs. Funk, 17 Iowa Rep., 365,) where a city charter
provided that the common council should be the "judge of the election and qualifica-
tions of its own members," but no ordinance had been passed prescribing any method
of trial, that the mere provision in the charter did not preclude a contestant from a
resort to an information in the nature of a quo warranto. In The State vs. Wilming-
ton, (3 Hairing, Delaware, 294,) a provision in a city charter that the common council
" shall be the judge of the election, returns, and qualifications of their own members
and other officers of the corporation," was held by the supreme court of Delaware nut
to oust the jurisdiction of the courts. In 3 Hill, (N. Y.,) 42-52, the, supreme court,
composed of Judges Nelson, Bronson, and Cowen, held the following language : "If
the words of the, charter had, or could afterward have, the force, of a statute, still it
might be answered that it contained no clause expressly denying to the king's bench,
or the court holding its place, the exercise of its general powers in the particular
case." Numerous other authorities might be cited in support of this construction.
In a more recent case, decided in California, under a similar statute, (The People vs.
Holdeu, 28 Cal. Rep., 123,) the principle aud rule expounded in the cases in Iowa, Dela-
ware, and New York is substantially re-asserted.
In analogy to the question the court is considering, the, construction
given by the supreme court in Tucker ex parte, (25 Ark.,) wheu review-
ing the force and effect of section 20, article 8, of the constitution, may
be cited. This section provides "that in criminal causes the jurisdic-
tion of justices of the peace shall extend to all matters less than felony
for final determination and judgment." The. supreme court held that
this language did not exclude the jurisdiction of the circuit court in
criminal causes less than felony, but that it was concurrent. The same
principle, involving a quo warranto, was decided by the supreme court
in the case of The State vs. Johnson, (17 Ark., 407,) before referred to.
But if we were to concede all that is claimed for the word "determine,"
in section 19, and that the legislature had exclusive jurisdiction of con-
tested elections, it does not affect the jurisdiction of the circuit court
to try the case then presented.
Whatever may be the popular or parliamentary meaning of the term
"contested election," in legal parlance it means a case where a party at
the close of the polls did not have a majority of the votes, 'out claims
tbata sufficient number voted for his opponent who were not entitled to
vote to change the result, and for that reason seeks to contest and cor-
rect the election itself. Such is not the case in the suit which Brooks
brought against Baxter, upon which he recovered judgment for the
Although he had been defrauded in registration and by ballot-box stuff-
ing while the election was progressing, still, at the close of the polls, he
had received largely the most votes, and was elected. Consequently, he
did not wish to go behind that event or in any mauner to contest what
had transpired up to that time; he was willing to abide by it. Upon it
he rested for his title to the office of governor, but conspirators in the
interest of Baxter were destroying and suppressing the evidence of his
title ; they were forging false evidence to be used against him. He was
compelled to go to the courts to supply the testimony which had been
destroyed, to prove his title and recover the franchise. He sought to
enforce the case as it stood at the close of the polls. Instead of con-
testing the election, he sought to give force and validity to its results,
upon which he based his right to recover the franchise from the usurper
who fraudulently held it contrary to law.
But we can go farther. On the morning when the declaration was made
by the president of the senate the full returns showed that Mr. Brooks
was elected, and in order to produce the desired result they suppressed
the returns of three whole counties and forty-eight precincts in other
counties. Mr. Brooks went into court to supply the proof of which he
had been thus fraudulently deprived, and to claim a legal right based
upon the testimony in the case.
Counsel have criticised the proceedings in the circuit court, all of
which amounts to nothing, becanse any irregularities such as they speak
of would only amount to error, and would not invalidate the judgment ;
yet, as these matters have been misrepresented, it is due to the judge
and Mr. Brooks that I make a brief statement of what occurred.
The action was regularly brought, process was served on Baxter, and
Baxter tiled a demurrer to the jurisdiction of the court. Mr. Brooks
took his testimony establishing his right to the office, Baxter failed to
cross-examine Brooks's witnesses, and took no testimony on his own be-
half, but stood upon his demurrer; a short time before the judgment was
rendered, Mr. Whipple, one of Brooks's attorneys, moved to submit the
ease upon the demurrer; Baxter's attorneys asked to have it laid over
for the present, to which Mr. Whipple consented, which, according to
our practice, left the case standing upon his call, and he had a right to
bring it up at any time he saw lit. It has been asserted that there was
an agreement that the case was not to be called up. I am prepared to
say that that assertion is absolutely false; no such agreement was ever
made, none such has been proved.
But if such an agreement had been made and violated, if would not
affect the validity of the judgment. Baxter's remedy would have been
by motion to setaside thejudgment, which, upon proof of such a state of
facts, would have been granted. But it is contended that upon the over-
ruling of the demurrer there should have been a judgment respondeat
ouster. That is not Hie practice in Arkansas. When ademurreris over-
ruled it stands as if no demurrer had been filed, so far as the future steps
in the case are concerned, and leaves the complainant without defense,
and the plaintiff had a right to move to take the complaint for confessed
and have judgment upon it. When demurrer was submitted the fact
Mas published in the two daily papers in Little Rock, and the fact was
well known. Judge Why lock's views as to the jurisdiction of the cir-
cuit court over these cases was also well known, because his opinion
in the case of Berry vs. Wheeler had been published in the Little Rock
Daily Republican, and he swears that he had been apprised that the
decision in the quo-warranto case was the result of a programme and
conspiracy, and he did not regard it as authority to him.
The case took the usual course of other cases in that court. My
former partner, Mr. Benjamin, had an important case standing upon a
demurrer about that time, lie was not in court when the demurrer was
decided and judgment was rendered against his client. He, however,
instead of declaring martial law and resisting the judgment, tendered,
within a reasonable time, an answer setting up a meritorious defense,
with an affidavit of merits, and an excuse for not having previously filed
an answer, and the judgment was set aside. But the truth is, Baxter
could not make an affidavit of merits; he could not swear that he had a
meritorious defense ; he had no excuse to offer for not having filed an
answer, except that he intended to defy the decision of the court. But
the various attorneys who have acted for Baxter in this matter appear
to have conceived the idea that the proper mode of showing that a judg-
ment is not valid is to indulge in low, personal abuse of the judge who
rendered it, in answer to all of which I will take this occasion to say
that Judge Whytock is the equal of any of them in integrity, capacity,
and character, and if all of them were put together, he would far exceed
the aggregate in all the attributes of a man, a lawyer, and a gentleman.
Mr. Baxter says he intended to defend that suit in the circuit court.
In his letter to the President, written some time before that, he winds
up by saying that he has interposed a demurrer, or shall do it, (I forget
which expression he used,) and that if the court took jurisdiction he
should resist, even to the extremity of martial law, and he advised the
President to send re-enforcements down to the barracks at Little Pock,
thinking, I suppose, either that the President might ueed his aid, or that
he might need the President's aid in resisting the judgment of the
court. It is a notorious fact that he did not intend to defend the case,
and the proceedings in the case show it. His weak pretext that he
intended to defend it is simply ridiculous in the face of all these cir-
cumstances. He had avowed, time and again, that he would never sub-
mit to the decision of any court, supreme or circuit ; that he would re-
sist any adverse decision by martial law and violence. But if the cir-
cuit court would decide for him and the supreme court would decide for
him, he would abide by their decision; but if they deci< led against him,
he would resist. That is a kind of " honest submission to the law"
which is really commendable. But the truth on the subject is, that
Baxter had proceeded on the idea, that there would have to be a writ
issued to put Brooks in possession of the office, and that while that writ
was in the hands of the .sheriff he would have time to get his White-
League militia together and put down the civil authorities, and ride
rough-shod over the people of the State, aud trample under foot the
constituted authorities of the law.
But in this Baxter was disappointed. No process was necessary, and
none was issued; consequently, Brooks took possession before Baxter
had opportunity to resist the law.
THE JUDGMENT EXECUTES ITSELF.
But it has been seriously couteuded that some kind of a writ or pro-
cess should have been issued to execute the judgment and deliver the
franchise recovered, and that such process should have been executed
by an appropriate officer ; but a moment's reflection will show the
absurdity of this position. Mr. Brooks had by that judgment recovered a
franchise which existed only in law ; it was an incorporeal hereditament that
was wholly incapable of manual delivery, aud when the judgment was
rendered vesting the right to the franchise in Mr. Brooks, the posses-
sion instantly passed. The judgment executed itself, aud when he took
the oath of office he was, to all intents aud purposes, governor of Ar-
kansas de facto and de jure.
In the case of Welch vs. Cook, State treasurer, &c, published in 7
How. Pr. Reps., (S. Y.,) the court, ou pages 284—5-6, uses the following
It becomes important, therefore, to inquire what this judgment settles. It is admit-
ted on all hands that it settles the question between these parties that Mr. Cook is a
usurper of the office, and not entitled to hold the same, aud that the petitioner, Mr.
Welch, is entitled to the office. It is claimed by the counsel for the petitioner that the
rendition of the judgment operal es per se to oust Mr. Cook aud exclude him from the office
aud also to establish the right of Mr. Welch thereto ; aud that upon taking the official
oath, and tiling the bond required by the statute, he becomes virtually installed into
the office. The counsel for Mr. Cook insists that the judgment has no such effect. * *
The statute therefore is, if judgment be rendered upon the right of the party, he
shall be entitled, upon taking the oath aud executing the bond, to take upon himself
the execution of the office; aud it makes it his duty, immediately thereafter, to demand
of the defendant the books and papers belonging to the office from which he shall have
been excluded. From which he shall have been excluded from what ? The statute
itself furnishes the answer, for it speaks of nothing but the rendition of the judgment,
and gives to the party entitled, upon the rendition of the judgment, the right at once
to take upon himself the execution of the office, on taking the oatb, &c.
After remarking that the courts of England treat the judgments as
actually ousting aud removing the defendant from the office, the court
But whatever may be the effect of such a judgment in England, I apprehend that
under our statutes the rendition of the judgment operates as an actual ouster and exclu-
sion from office. And such being the effect of the judgment in this case, I take it to be
Aery clear that the appeal from it cannot re-instate Mr. Cook. The judgment stands in
full force and effect pending the appeal, and uutil reversed.
This case was affirmed by the court of appeals in 4 Seld., page 220.
In the case of The People vs. Conover, 6 Abb. Pr. Pep., 222, the court
This court held in Welch vs. Cook, 7 How. Pr. Rep., 262, that upon the rendition of
a regular judgment of ouster in the suit of the people against a public officer, aud in
favor of another individual for the office, the officer becomes actually ousted and ex-
cluded from office, and the party declared to be entitled, upon taking the official oath
aud tiling his bonds, when required, becomes, eo instanti, invested with the office. It
would seem, therefore, to be settled in this State, that in a suit like the present, the
party declared to be entitled to the office takes it upon judgment being rendered. The
judgment, so far as the office is concerned, executes itself. * * * There is nothing,
so far as the office is concerned, which the sheriff can seize and deliver to the plaintiff.
The same principle was decided by the supreme court of Georgia, in
the case of Fulgham vs. Johnson, 40 Ga., 166. So it will be seen that
Mr. Brooks became de jure governor by having received the grant from
a majority of the legal votes cast at the election. He having recovered
the franchise from Baxter, a usurper, by a binding and valid judgment
of a superior court of general and competent jurisdiction; the judgment
executed itself. Mr. Brooks took the necessary oath of office, and, in
the language of the court in the case in 7th Howard, took upon himself
the execution of the office, and was regularly administering the govern-
ment, as completely invested with all the rights, powers, and preroga-
tives of the office, as was the governor of any State in the Union.
AFTEE THE JUDG-MENT AEL OFFICIAL ACTS OF BAXTER "WE HE VOID.
All of which deprived Mr. Baxter of all color of authority, even as a
de facto governor, and all official acts which Baxter attempted to per-
form, after that judgment was rendered, are ab olutely void, and of no
more force than if done by a person who had never claimed to be gov-
This question is expressly decided in Rochester and Genesee Yalley
Railroad vs. Clarke National Bank, 60 Barb., 234. On page 249 the fol-
lowing language is used by the court:
When the color of authority notoriously ceases, the reason for sustaining the acts
as the acts of officers de facto ceases. We think thai when by a judgment of the court
of last resort, in a direct proceeding to determine the title of officers de facto, it lias
been adjudged that tbey had no rightful title to. the office, but are mere usurpers, then,
at least, as fco all who have notice of such proceeding and judgment, the color of au-
thority has ceased ; and this without regard to whether anybody else has been inducted
into the office or not. As officers de facto there must be at least a presumption that
they are rightfully in office. Such presumption cannot be said to exist after the de-
cision of a competent tribunal to the contrary. To hold that persons who, according
to the decision of the court having jurisdiction to decide so as to bind the parties and
the public, are mere usurpers, may still exercise the powers and discharge the duties
of the usurper's office, is to deprive the judgment of ouster of all force or efl'ect.
Therefore, after that judgment was rendered and Mr. Brooks had
taken the oath of office, and entered upon the duties of administering
the government, he was to all intents and purposes governor of Arkan-
sas, and Baxter was to all intents and purposes a private citizen with-
out color of official authority — he was out of possession and was not
governor either de jure or de facto — and all his pretended acts were ab-
BAXTER CONVENING LEGISLATURE A NULLITY, AND PROCEEDINGS
UNDER IT VOID.
The legislature could be convened only upon the call of the governor.
Baxter's call, which was after the judgment was rendered, and when he
was out of possession, was absolutely void, and that extra session of the
legislature had no legal existence; and the pretended act calling the
constitutional convention was of no more legal force than if it had been
passed by any other assemblage of men.
We have here presented to us the same case that was presented in
Rhode Island under the Dorr constitution, a case in which the theory
that the people, of their own volition, without regard to the forms of law,
had a right to change their constitution, was entirely and forever
The vote of the people in Arkansas upon the call of a convention, or
upon the ratification of the constitution, did not give vitality to the pro-
ceedings. The same was done in Rhode Island by a most decisive vote,
and yet it was held in that case that no majority, however large, could,
in such a manner, change the organic law of the State, or overthrow an
existing and recognized government. The supreme court of that State,
in its instructions to the grand jury, say that the question is not how
many votes were given upon these propositions, but what right had the
people to vote on them at all.
Therefore there can be no serious pretext that the pretended constitu-
tion of 1S74 sprung from a legal source. If it is sustained, it must be
on the ground, which was rejected in the Rhode Island case, that a ma-
jority of the people of a State possess the inherent power to throw off
their government and establish another at will, and that the minority
are bound by the lawless act of the majority; but constitutions which
are made to protect the minority, and to guard against hasty and unwise
legislation, would afford but little protection if they could be set aside
with more ease and less formality than would attend the repeal of an
act of the legislature. But the Baxter and Garland dynasty are pre-
cluded from claiming validity for their constitution on that ground. The
fact that they attempted to bring it into existence under legal authority
is a confession on their part that it is void, unless it was originated,
prepared, and adopted in pursuance of the forms of law.
1 presume, however, that no one seriously contends that the people
have the inherent and inalienable right, in their natural or individual
capacity, to throw off the government under which they live in any man-
ner other than that provided in express terms, or by clear implication,
in the incorporated government. However the precedents and author-
ities may differ upou other matters, they all agree that nothing short of
a legal act of the legislature will authorize the assembling of a conven-
tion to frame a constitution. To displace the "existing organic law of
the State the convention must be legally called, must have legal exist-
ence, and the constitution must be legally ratified. I know of no prece-
dent or authority to justify the claim that less than that can displace
an existing constitution. If the people, in their individual and natural
capacity, have the legal right to throw off and absolve themselves from
an existing government, it would follow that secession was legal, and
every act of the Government in suppressing the rebellion was au inva-
sion of the legal rights of the people of the seceded States. Such a doc-
trine cannot be urged with much hope of success.
Something has been said about the large vote that was giveu for the
constitution. We have shown that that amounts to nothing, and it is
more than probable that the importance that was thought to be attached
to that circumstance contributed much to the unprecedented vote that
was reported. There is a population of about 500,000 in the State ; the
assessment for poll-taxes shows about 105,000 males over twenty-one
years of age. In the race of Brooks and Baxter, in 1872, the reported
vote was about 80,000. A large number of voters were refused registra-
tion, but a much greater number of fraudulent votes were stuffed in the
ballot boxes, so that that election is really no test of the voting strength
of the State, ami, although the campaign was very thorough and excit-
ing, there were probably not more than 70,000 votes cast. Previous to
the election, upon the ratification of the Garland constitution the
republican State convention issued an address, advising the repub-
licans not to participate in that election, and most of the leading and
active republicans were absent from the State when the election was
held. Yet at that election the board of canvassers appointed by the
convention reported that there were about 103,000 voles cast. It is
almost preposterous to contend that in a sparsely settled country, with
a population of 105,000 male inhabitants, 103,000 votes could have been
cast, even if the republicans had actively participated in the election.
This election was held on the L3th day of October. On the first Tuesday
in November the congressional election was held, which was overlooked
by United States supervisors, and although closely contested, but little
over 65,000 votes were cast, showing a failing off of about 45,000 votes
from the other election held about three weeks before. This shows but
little significance can be given to that election, or any other election not
held in accordance with law.
THIS NOT A CONTESTED-ELECTION CASE.
It is suggested on the other side that the ease which is presented in
this record is a mere contested election, over which Congress has no
jurisdiction. J have endeavored to show that this never was a ease of
contested election. Aside from the judgment, it is a ease where ihe
legally elected governor was kept out of the office by fraud and force,
and a usurper was pretending to discharge the duties of the office.
That usurper has overthrown the government and established another
in its stead, and has transferred this to another person, who is adminis-
tering it upon the people of the State without any authority of law. It
certainly would seem that Congress in carrying out the provisions of
the Constitution, in guaranteeing to every State a republican form of
government, would have the right, at least, to secure to the people of
Arkansas their legal and recognized government, administered by
officers of their own choosing.
But if this was ever a case of contested election, it has long since
ceased to occupy that attitude. The State courts mentioned in the tele-
gram of Attorney-General Williams to Baxter have settle*! and disposed
of that question, and Mr. Brooks's right does not depend upon contest
ing the election, but it rests upon the valid and binding judgment of
the Pulaski circuit court. A pretended government, unknown to the
Government of the United States, brought into existence by unauthor-
ized parties, and contrary to the forms of law, has sprung into exist-
ence, and its adherents are in insurrection against the recognized gov-
ernment established in 1868, of which Mr. Brooks is the lawlul governor ;
and when this case is presented to Congress, and relief is demanded
under the fourth section of article 4 of the Constitution of the United
States, we are told that Congress is powerless to grant the necessary
relief. If this be so the Federal Government is weak indeed, and its
guarantees afford but little protection.
FEDERAL INTERFERENCE WITH THE SOUTH.
Much is said in a certain class of newspapers about Federal interfer-
ence in the affairs of the South. This complaint is not new. In LS01
the Federal Government felt compelled to interfere with the affairs of
the South, for the reason that a large number of persons in that section
violated the laws and disregarded the rights of citizens of the United
States. The same class of papers complained then that complain now.
It is more than probable that hereafter, for the same reason, the Fed-
eral Government may, from time to time, find it necessary to so far
interfere with their affairs as to secure to loyal citizens, in those loca-
tions, as much protection, at least, as would be afforded them on foreign
But any prejudice that may exist upon this subject cannot properly
be applied to Mr.Brooks. He only asks the Government to restore him to
the position which he rightfully occupied at the time when the Govern-
ment did interfere in Arkansas affairs, in May last. He only asks to
be restored to the position he then occupied, from which he was removed
by the Federal Government. All he asks of the Government is to put
him in statu quo.
THE GARLAND LEGISLATURE ESTABLISHING PEON SERVITUDE.
The legislature under the Garland government have introduced bills
establishing the %)eon system of servitude ; also a bill creating a large
Dumber of sub-penitentiaries, with permission to hire out the convicts
on farms, and abolishing the distinction between grand aud petit
larceny ; also making vagrancy a felony punishable in the peni-
tentiary. Under this bill the planters could combine and refuse to
hire any of the colored people for a given length of time, whereby every
negro that did not own land would become a vagrant, or near enough
one to be convicted by a jury composed of persons that expected to cul-
tivate their plantations with convict labor. Many persons are unwilling
to believe that they would avail themselves of such laws for such pur-
poses ; but they certainly would, or they would not pass them. Soon
after the war closed, almost every southern State adopted this system
of legislation, and they have not changed their views upon that subject
since. Besides, it is perfectly natural that they should do so ; they
have been raised from childhood to believe that the negro existed to la-
bor for them without compensation ; they believe that the amendments to
the Constitution, and all legislation securing to the negro freedom and po-
litical rights, are not only void, but infamous ; aud that the Government
has robbed them in freeing their slaves, and they will avoid the conse-
quences of this supposed robbery whenever they cau safely do so. They
feel justified in resorting to almost any means to secure that which they
believe is rightfully theirs ; that is, the labor of the colored race with-
out compensation. That they should do so, with their opinions, ought
not to excite wonder. They are far less at fault for pursuing such a
course than the men who gave to the negro his freedom would be, if they
were now to remand thefreedmen, for their civil aud political rights, to
a class of persons who deny that he has any such rights, and honestly be-
lieve that he is adapted only to the condition of servitude. If the Gov-
ernment is going to sustain a system of revolution and violence in the
southern States by which the State governments are to be placed in the
hands of those who carried them into rebellion in 1861, freedom to the col-
ored race will be a curse, rather than a blessing. In slavery the property-
interest of the owner would protect them from the lawless, against
whose violence they have no protection as freemen ; and whenever they
have to rely upon that class of persons to enforce the laws that protect
them in their civil and political rights, those laws will become a dead
letter, and those rights will exist alone in theory.
IMPORTANCE OF THE QUESTION, AND THE REMEDY.
This case presents to Congress some grave questions, which it must
decide, because a failure to act amounts to a decision. If in this case
the precedent should be established that the lawfully-elected officers of
a State government can be kept out of office by fraud and force, and
t lie judgments of the courts awarding to them their offices can be dis-
regarded and resisted by a usurper who has obtruded himself into the
office, and that usurper can conspire with others and overthrow the
government in a manner unknown to the constitution and laws of the
State, it seems to me that it would lead to a-destruction of constitu-
tional government, and in the southern States would amount to a sur-
render of all the fruits of the war to those who were supposed to have
been defeated in the conflict.
If I am correct in the view I have taken in this case, the only remain-
ing (( next ion is, What is the remedy ? I see but little difficulty in that.
If Mr. J books was legally elected governor in 1872, that constituted
him governor de jure. When lie qualified and took possession of the
office, under the judgment of the Pulaski circuit court, and was dis-
charging its duties, be became governor de jure and de facto, and was
as perfectly invested with a complete title to the office as was the gov-
ernor of any State. Baxter ceased to have any color of office, and his
act in convening the legislature, and all other pretended official acts of
bis, were void; and ad acts done under or by virtue of bis pretended
authority were also void; and the Garland constitution, and the acts
which lead to it, or have been done under it, are of uo validity what-
Therefore Mr. Brooks is the legal governor of the State, and the con-
stitution of 1S68 is still in force, and those who are administering the
Garland government, or sustaining it, are in insurrection against the
lawful government of Arkansas.
Section 4 of article 4 of the Constitution provides that the United
States shall guarantee to every State a republican form of government.
First, it is to guarantee to every State a government; second, that gov-
ernment must be republican. The government under the constitution
of 18G8 is the only legal government in Arkansas, and that government
must be guaranteed. The Executive can only act upon a prima- facie
or apparent case ; different persons claim to be governor of Arkansas ;
the President can only determine who appears to be governor. Con-
gress can investigate and determine the whole case — can determine who
is actually governor, and what is actually the true government ; and,
according to the doctrine in the Luther-Borden case, when Congress
has made that determination, it is binding upon the Executive and
other departments of the Government.
And if Congress should decide by resolution or otherwise that Mr.
Brooks was the lawful governor of Arkansas and that the constitution
of 1868 was still in force, it would follow that Garland's pretended gov-
ernment was an insurrection against the lawful government. The Ex-
ecutive would thus be apprised upon whose requisition for aid he should
act, and upon the requisition of Mr. Brooks as governor, thus recog-
nized, it would be the duty of the President to put down the insurrec-
tion existing in Arkansas against the legal government, and to main-
tain the lawful government of the State.
This is the case which Mr. Brooks presents to Congress. He presents
it in his own name, as the lawful governor of Arkansas, wdio has been
wrongfully deprived of the office, and compelled to give place to a
usurper. He presents it in the name of a large majority of the people
of that State, whose rights have been outraged, and who have been rob-
bed of their suffrage. He presents it in the name of the law, whose tri-
bunals have been stricken down by arbitrary power. And he presents
it in the name of two hundred thousand freedmeu in Arkansas, who
shudder at the thought or being turued over to the tender mercies of a
class of men that regard them as only tit for servitude or assassination —
who are now awaiting the result of this case with the same painful soli-
citude and suspense with which, in former years, they awaited the falling
of the hammer upon the auction -block.
With such a case we are unwilling to believe that Mr. Brooks is to be
deprived of his legal rights by a government of whose burdens and
dangers he has borne his full share, and to whose welfare, in its
hour of peril, he has contributed more than his portion of sacrilice and
sorrow, and to which he has never left a duty unperformed.
LIBRARY OF CONGRESS
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LIBRARY OF CONGRESS
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