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Full text of "Concluding argument by M. L. Rice, esq., before Select committee on Arkansas affairs"

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014 647 895 5 



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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- 
ment. 

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- 
1 ARK 



7w 

2 '^f 

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 
administration. 

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 
State administration. 

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. 



6 

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, 
stood — 



8 

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 



10 

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. 
Yes. 

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 
resolution. 

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 



11 

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 
the house. 

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 

MINISTERIAL. 

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- 
sive. 

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 






12 

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 
the post-office. 

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 



13 

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. 



14 

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 



15 

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 
269: 

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. 



16 

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 

CASES. 

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 



17 

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 
legislative act. 

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 
its proceeding's. 

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. 

2 AEK 



18 

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- 
tution. 

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. 

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 



19 

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 
the government. 

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. 



20 

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 
of militia. 

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 
Baxter. 

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 



21 

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. 



22 

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 
at all. 

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 
men there. 

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. 



23 

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!— 
A. Yes. 

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 
that effect. 

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- 
ranto. 

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-^ 



24 

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, 



25 . 

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 
the fly-leaf. 

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 
time. 

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 
State. 

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. 



26 

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 
278: 

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- 
gram. 

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 



27 

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 
some extent. 

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 
signature. 

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. 
Truly, yours, 

L. GREGG. 

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 



28 

judge who was guilty of such conduct, he was the mau to engage in 
that enterprise. 
Now, here is a letter from Baxter to one of the judges : 

Executive Office, 
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. 
Respectfully, yours, 

ELISHA BAXTER. 

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 



29 

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, 



30 

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. 



31 

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 : 

[Telegram.] 

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 
the State. 

GEORGE H, WILLIAMS. 

Attorney-General. 

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. 



32 

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 
peace. 

Section 18 of the civil code of practice, as amended, provided as fol- 
lows: 

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- 
tion. 

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 



33 

ciredit court as a court of superior jurisdiction in the legal sense of 
the term. 

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 
supreme court. 

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- 
versed. 

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 
jurisdiction. 

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 
be erroneous. 

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 

3 AKK 



34 

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 



35 

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 
authority. 

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 



36 

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 
county offices. 

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. 



37 



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- 
diction. 

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, 



38 

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 
houses," &c. 

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 
is embraced. 

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 



39 

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 



40 

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 
office. 

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- 



41 

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 



42 

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 
language: 

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 

says : 

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 

says : 

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- 
ernor. 

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- 
solutely void. 

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 
exploded. 

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 



44 

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. 



45 

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 
soil. 

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 



46 

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- 



47 

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- 
ever. 

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. 



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