WADE HAMPTON,
GOVERNOR OF SOUTH CAROLINA,
ATSTO OTHERS,
TO THE
CHAMBERLAIN MEMORIAL.
COLUMBIA, S. C.
rtlTNTKD AT THE PRESBYTERIAN PUBLISHING HOURK
1877.
MEMORIAL
OF THE
GOVERNOR AND STATE OFFICERS
OF
SOUTH CAROLINA.
To the Senate and House of Representatives of the Congress of
the United States of America :
The Memorial of Wade Hampton, Governor of the State
of South Carolina; William D. Simpson, Lieutenant Governor
and President of the Senate; of William H. Wallace, Speaker
of the House of Representatives of the said State ; and of James
Conner, Johnson Hagood, R. M. Sims, S. L. Leaphart, II. S.
Thompson, and E. W. Moise, who were elected at the general
election held in said State on 7th November, 1876, to the offices
respectively of Attorney General, Comptroller General, Secretary
of State, State Treasurer, Superintendent of Education, and Ad-
jutant and Inspector General of the said State, respectfully
showeth to your Honorable bodies : That your memorialist, Wade
Hampton, Governor of said State, being prevented from taking
peaceable possession of the Executive Chamber, the Great' Seal,
and other things appertaining to the office of Governor, by armed
troops of the United States, (under command of brevet Brigadier
General Thomas II. Ruger, commanding in South Carolina,) who
had taken armed posscssipn of the State House and its approaches,
and excluded therefrom the said Governor of the State, Lieu-
tenant Governor and President of the Senate, and the House of
•?
Representatives; the said Governor, Lieutenant Governor, House
of Representatives, and thirteen of the Senators of the said State,
being unable to assert their rights in the premises by peaceful
means, and recognising the supremacy of the Constitution and
laws of the United States, and relying upon the right and duty
of Congress to guarantee to this State a Republican form of
government, wherein the constituted authorities of the State
should not be suppressed by the military, in December, 1876, ad-
dressed their Memorial, respectfully applying to your Honorable
bodies to cause a cessation of the unwarranted interference of the
military authorities and the United States troops in the affairs of
the State, and for such action as would relieve them from the
unwarranted conduct of the United States authorities, and would
enable the Governor, Lieutenant Governor, and House of Repre-
sentatives of the State peacefully to exercise the rights and per-
form the duties of their offices. Upon the simple narrative of
facts in said Memorial set forth, the truth of which is a part of
the history of the times, and which they stood ready at any mo-
ment to prove, your Memorialists would fain have rested their
claim to the relief from armed oppression which they sought,
had they not recently seen in the Congressional Record of Janu-
ary 17th a memorial of Daniel H. Chamberlain and others, falsely
asserting themselves to be the Governor and State officers of
South Carolina, so teeming with suppressions of truth and worse
than suggestions of falsehood, that they are constrained by a sense
of public duty once more to obtrude upon the attention of your
Honorable bodies the unhappy condition of South Carolina, and
to contradict and disprove some of the many slanders and libels
by which it is sought to justify the military tyranny and usurped
authority imposed upon her.
I.
General Character of the Recent Election.
Under this head the Chamberlain Memorial alleges intimida-
tion of and violence upon Republican voters during the canvass
which preceded the election; the call by Chamberlain, when
3
Governor, upon the President for troops for protection against
domestic violence pending the election, and the inefficiency of the
troops to render this protection. So much of this allegation as
avers that Chamberlain, when Governor, called upon the Presi-
dent for troops, and that they were furnished, "so far as practica-
ble," by the President, is true. But it is equally true, that the
allegation of domestic violence, on which he based his applica-
tion, was and is a slander, and was denounced as such by almost
the entire intelligence of the State, including the Judges of the
State, (all of whom were Republicans, with a single exception,)
the business men of the two largest towns in the State, Charleston
and Columbia; the clergy and northern residents of Charleston,
the metropolis of this State; the public press and numbers of
grand juries—the grand inquests of the Counties in which the
violence was alleged to exist. It is equally true that under the
Constitution the Governor ,of the State had no right to make
such application, unless where the Legislature could not be con-
vened; and that the statement, that the Legislature could not be
convened at that time, is untrue, for it is a well known fact that
the Legislature of South Carolina can be convened in four days;
and it is equally true that Mr. Chamberlain did not dare to con-
vene the Legislature, for the reason that the members, fresh
from their homes in the different Counties in a time of profound
quiet, knew the falsity of his statements, would not have author-
ized the application, and would thus have forever put a quietus
on his slanders upon the people over whom he was the chief
executive officer. The ire of Mr. Chamberlain's proclamation,
and of his printed utterances as the nominee of the Republican
party, was principally directed against certain social organizations,
of some of which he was a member; to some of which he had, as
Governor, furnished arms and ammunition, and had contributed
money for their equipment; some of which he had presented with
banners; of some of which he had been the chosen guest and
spokesman on gala days and festal occasions. As soon as it
was discovered that the members of these social organizations,
(much civilty as they had shown to him and received at his hands,)
exercising the right of freemen, preferred a friend more tried,
4
and of longer standing, for the highest office in the gift of the
people, just so soon did he discover that these organizations
were unlawful, and order their disbandment; and though there
was no warrant of law for his order, and his action was in keeping
with his subsequent more tyrannical acts, when the canvass
deepened, these organizations submitted with scarce a murmur, and
quietly disbanded.
Independent of the concurrent testimony of all truthful men,
which conclusively shows the falsity and fallacy of what is alleged
under this head, they are also demonstrated by a number of
other undisputed facts, to a few of which attention is briefly
called, for example:
1. The large Republican vote polled. The large colored vote
polled. The large colored vote which the Democratic candidates
received.
True. Mr. Chamberlain's vote, as against his competitor, com-
pared unfavorably with Republican candidates, on his ticket, as
against their competitors; but this is fully accounted for by the
fact that Mr. Chamberlain ran behind his ticket while his
competitor ran ahead of his.
2. The entire State government, during the canvass, was in
the hands of the State Republican party, of which Mr. Chamber-
lain and his ticket were the chosen chiefs. All the Judges of
the Supreme Court, and seven out of eight of the Circuit Judges,
were Republicans. The great majority of the Sheriffs, Clerks,
and Judges of Probate, were Republicans. All the County
Auditors, County Treasurers, and Jury Commissioners, were not
only Republicans, but appointees of Mr. Chamberlain. All the
Trial Justices were appointees of Mr. Chamberlain, and, with
few and rare exceptions, they were all Republicans.
3. During the canvass, alleged to be so freighted against
Republican voters with intimidation and violence, no applications
were made by them to the legal authorities against such
intimidators; and no peace bonds required, with all the machinery
of the Courts, from the pettiest justice to the Chief Justice of the
Supreme Court, in Republican hands.
And since the canvass, though Courts have been held in every
5
County, no prosecutions for such offences have ever been in-
stituted by the prosecuting officers, or presented by the Grand
Juries. Nay, more, on the contrary, in several Counties the
Grand Juries have voluntarily presented Mr. Chamberlain, in
making these and similar charges in his proclamations and
published utterances, as a libeller of the State and its people.
Nor can it be said that this is in any degree owing to want of
stringency in the punitive enactments of the South Carolina
Legislature. See Revised Statutes, page 730, Chapter 132.
4. The reports of the army officers stationed here, nowhere
show, so far as we are aware, that their authority was resisted,
or that the military force was insufficient " to guard the voters
from violence and its effects " and " to insure to all the people
of the State, the right of suffrage, guaranteed to them by the
Constitution and laws of the country," or that they witnessed
such violence and its effects.
The fact that as a rule the Republican vote fell off and became
smallest in those Counties where the largest numbers of United
States soldiers were stationed during the canvass and the
election, and was largest in those Counties where the smallest
numbers were stationed, is of itself a most imperious negative
of these allegations.
5. The arrest of citizens made for violence and intimidation
in this regard, were made at the instance of the United States
District Attorney D. T. Corbin, and the United States
Marshal and Deputy Marshals, in certain Counties visited by
them. The charge that these arrests were made for the purpose
of manufacturing political capital, derives color from the fact that
the warrants for arrests were based on affidavits filled in upon
printed blanks previously prepared for that especial purpose, and
obtained, as stated in the local newspapers without contradiction,
by payments of money to each affiant, under the guise of wit-
nesses' fees, and from the further startling fact, that during the
session of the United States Circuit Court, held in Columbia
since the election, notwithstanding that District Attorney Cor-
bin and his two able assistants, Mr. Stone, who was also Attor-
ney-General of the State, and Mr. Earle, all Republican chiefs,
6
were present to prosecute, and His Honor Judge Bond presided,
and hundreds of Republican witnesses from the alleged intimi-
dated Counties were present to testify, not a single bill of in-
dictment was handed to the Grand Jury.
6. Intimidation was practised on a large seale by Republi-
cans against colored voters who wished to vote the Democratic
ticket. The prejudices and passions of their women, and the
intolerance of pseudo-religious fanaticism, were brought into
play for this purpose with powerful effect, notably in the
Counties of Darlington, Orangeburg, Beaufort and Charleston.
7. In fine, the utter falsity of the charge is demonstrated by
the entire canvass conducted by the Democratic State Candidates
and the State Democratic Executive Committee, from the letter
of acceptance of the nomination for Governor, to the close of
the peaceful but earnest canvass. Speeches were made by the
State Democratic nominees and canvassers in all the Counties in
this State, in peace, propriety, good humor and good feeling,
without a disturbance at a single meeting, except one single
disturbance, wasting itself in words, raised in the great Republi-
can stronghold, Beaufort, by ignorant colored Republicans,
under the instigation of an appointee of Mr. Chamberlain, one
Langley, who had served a term under sentence of United
States Court in prison for ballot-box stuffing, before his appoint-
ment. Numbers of officers of the Navy stationed at Port
Royal were witnesses of this disgraceful scene. The peaceful
nature of the canvass, and the high moral and patriotic plane on
which it was conducted, are evidenced by the printed reports in
the newspapers of all the speeches on the hustings and else-
where, by the Democratic candidate for Governor, and by the
laudations bestowed on them by hightoned Republican journals.
II.
As to what is alleged in said Chamberlain Memorial, under the
caption " II. The Canvass and Result of the Election."
It is not true that the said Board of State Canvassers,
having met on November 10, " entered upon the work of canvass-
7
ing the returns of said election " and " continued in session from
day to day until the 22d day of November," if the impression is
thereby intended to be conveyed, that the said Board was
actually engaged in the canvass of the returns during the said
period of time; but on the contrary, it appears from the Minutes
of the said Board thatfromthe 10th to the 17 th day of November,
nothing whatever was done by the said Board, except to pass
certain resolutions respecting the asserted powers of said Board,
the manner of conducting the canvass, and the intention of the
Board to take no action until their powers were defined by the
Court; that on the 17th, 18th and 20th days of November, the
Board was engaged exclusively in aggregating the returns under
the order of the Supreme Court, and that afterwards nothing
further was done by itin the canvass until it met on the 22d at 11
o'clock, , to adjourn finally at o'clock, after a session of
. hours. And the Memorialists aver, that as respects the
manner in which said so-called canvass and determination of
the Board was made, not only was the action of the Board in
direct violation of the statute of the State regulating its powers
and duties, and a flagrant contempt of the Supreme Court of
the State, as will hereafter be made to appear, but the said so-
called "determination " of the Board was made at a secret ses-
sion of hours on the said 22d November, notwithstanding
that said Board had resolved that eight persons from each party
should be present during the whole canvass, and after the said
persons had been falsely led to believe that the'said Board would
not take any action in the premises by a formal and public reso-
lution of the Board, as appears from the following extract from
the Minutes of the Board.
"Monday, November 13, 1876.
**********
" General Conner, on behalf of the Democractic candidates,
submitted the following paper in regard to the jurisdiction of
the Board:
" ' To the Board of State Canvassers:
" 'On behalf of the citizens of the State whom we represent,
and of the Democratic candidates on the State Ticket, we submit.
8
that all Acts of the General Assembly, authorising the Board of
State Canvassers to hear and decide all cases under protest or con-
test that may arise, in regard to the election of Electors for Presi-
dent. Vice-President, members of Congress, and all officers elected
at any general election held in this State, are in violation of the
26th Section of Article I. of the Constitution, and therefore un-
constitutional and void. And on behalf of the parties aforesaid,
we demand that the Board of State Canvassers, now assembled,
shall not hear or decide any such cases of contest or protest, but
shall only act ministerially in ascertaining from the returns and
statements forwarded by the Boards of County Canvassers, the
persons who have received the greatest number of votes for the
offices for which they were respectively candidates, and declare
the same and certify it to the Secretary of State.
• Nov. 13, 1876. James Conner, Counsel'
Wednesday, November 15, 1876.
" The Board met at 10 A. M., all the members being present.
General Conner on behalf of the candidates on the Democratic
ticket, submitted the following papers, and asked a decision of
the Board in regard to them :
" ' To the Board of State Canvassers:
" ' We submit that the comparing the statements of the Board of
County Canvassers with the returns of the Managers and the
verifying the aggregations of the returns he accomplished by the
Clerk and an assistant Clerk of the Board, and a Clerk and
assistant Clerk on the part of those whom we represent. That
the Clerk of the Board open the sealed packages in the presence
of our Clerk, and that the two Clerks verify the papers and
compare them with the returns of the Managers and call off the
figures, and that the assistant Clerk shall, on separate papers,
keep the tally and aggregate the figures.
James Conner, Counsel.'
tliTo the Board of State Canvassers:
We request, on behalf of the parties whom we represent, that
the Board will decide upon the request submitted on the 13th
instant, and regard its failure to decide as a refusal of the request.
James Conner, Counsel.'
9
"Mr. Cardozo introduced the following resolution, which was
unanimously adopted: Jtetolred, That this Board will not act
upon any proposition until the question of its jurisdiction and
duties be decided by the Supreme Court."
Nor can it avail the Board to say that it was compelled to this
hasty action on the 22d November because it had suddenly
awakened to the limitation of its powers to' ten days by the
statute, for (1st) the said Board had previously asked the opinion
of counsel before them, upon the point whether the time during
which the Board might be under the restraint of the proceedings
in Court would be included in the said ten days; and being advised
that it would not be so included, and the same opinion being ex-
pressed from the Bench, even if the ten days should be construed as
a limitation of the power of the Board, the Board, with the con-
sent of the parties in interest represented before it, had proceeded
upon the opinion; and (2d) the said session of the Board on the
22d day of November was held after the ten days fixed by the
statute had expired, this statutory time having begun on the 10th
November, inclusive, and having expired upon the expiration of
the 21st day of November, Sundays being omitted from the
computation.
But neither the letter nor the spirit of law justify any such
construction as placing a limit often days, excluding or including
Sundays, for the entire session of the Board. The words are, " The
Board shall have power to adjourn from day to day for a term
not exceeding ten days." The obvious meaning is, when the
words are taken in connexion with the words of the statute, to put
ten days as the limit of adjournment without action while await-
ing the returns from the Counties, a prohibition against unneces-
sary delay. The words at most would be construed as direc-
tory merely. Ex parte, Heath N. Y., 3 Hill (47.) That
the intimation from the Bench that the time in which the
action of the Court might interfere with the action of the
Board would not be counted as portion of the ten days is correct,
is settled law.
As to the allegation that "in conducting said canvass the said
Board, under the powers conferred upon them by law, were called
2
10
upon to decide many cases of contested elections, and particularly
to decide upon protests against the validity of the entire election
in the Counties of Edgefield and Laurens," your Memorialists say:
lit. That by the laws of said State the said Board was expressly
prohibited from hearing contests in the cases of members of the
Legislature, the power to do so residing in such cases under the
Constitution of the State in the respective houses of that body;
Sd. That the Supreme Court of the State had previously so ad-
judged, and issued its mandamus, commanding the Board to cer-
tify the election as it appeared upon the returns; and 3d. That
as a matter of fact no protests or contests were properly or legally
before the said Board in reference to the elections held in Edge-
field and Laurens Counties, as will more particularly appear under
the next caption.
The rulings of the Courts of the State are all against the at-
o o
tempt of such bodies (as the Board of Canvassers) to exercise ju-
dicial functions—that is, to try any questions of fact, in vol ving judi-
cial hearing of evidence, outside of the election papers—or to decide
any questions of law arising out of the election; their duties in
the main being merely ministerial, and in determining and certi-
fying the persons elected, extending no farther than the verifica-
tion of the precinct and County returns and statements by the
canvassers and comparison of the election papers before them.
That no machinery for production of evidence aliunde, or for
hearing of cases judicially by such Boards, is known to the elec-
tion law of the State. That their claim to exercise judicial pow-
ers was denied before the Court (in proceedings to which the
Board of Canvassers were parties) during their sitting in Novem-
ber, 1876, and the question had been argued by their counsel on
their behalf, and was under consideration by the Court at the
time of their disobedience of its mandate.
That assuming the constitutionality of the provisions of
the Act relied on by them as giving to the Board, in con-
nexion with their duty "to determine and declare what per-
sons have been by the greatest number of votes duly elected,"
the power "to decide all cases under protest or contest that may
arise, when the power to do so does not by the Constitution re-
11
side in some other body," there is no warrant even in the lan-
guage of this provision for the assumption of the power by the
Board to decide upon ex parte statements or evidence, or to sit
in secret session, while hearing such evidence, or to decide other
than " canes under protest or contest"—that is to say, cases made
by parties who may have filed protests, or between parties who
may have made contests.
That there is nothing in the language of the statute quoted to
warrant the assumption of the Board of Canvassers "to decide
upon protests against the validity of the entire election" in the
whole State, or in any part of the State.
That above all, it was by the law no where made their duty, nor
was the power conferred upon the Board to decide against the
validity of the election of members of the State Legislature, the
right to judge of the returns and qualifications of the members of
the General Assembly being vested by the Constitution of the
State expressly in the two Houses, and being expressly excluded
by the terms of the Act from the cognizance of the Board of
State Canvassers.
And yet, upon the assumption of this right of the Board "to
decide against the validity of the entire election in the Counties
of Edgefield and Laurens," rests the whole structure which the
Chamberlain Memorialists have builded to sustain their usurpa-
tion of the Government of the State of South Carolina!
III.
As to what is alleged in said Chamberlain Memorial, under the
caption "III. The rejection of the returns from Edgefield and
Laurens Counties," your Memorialists say :
That.so far as concerns the declaration by said Board of State
Canvassers, that F. L. Cardozo, T. C. Dunn, H. E. Hayne, R.
B. Elliott, J. R. Tolbert, and James Kennedy, had been respect-
ively elected to the several State offices, it was not only not made
upon proof of their election before said Board, but was made in face
of the fact that the returns and evidence before the said Board
clearly showed that no one of them had been elected, but that, on
12
the contrary, their competitors for the offices for which they were
severally candidates,/were duly elected, in their so-called determin-
ation of the election of these persons, the said Board not having re-
jected the votes of Edgefield and Laurens Counties, but having
counted such votes as they appeared upon the returns, and
counted an illegal precinct, unauthorised and unknown to the
law, Abbeville No. 2., which purported to give a large Republi-
can majority. And so far as concerns the declaration of the
Board, that it was unable to declare any person elected in the
Counties of Edgefield and Laurens, your Memorialists say : 1st.
That the returns from Edgefield and Laurens Counties were con-
sidered by the Board in determining the election of State
officers ; 2d. That, as already stated, the Statute which regulated
the functions of said Board expressly prohibited it from going
behind the returns in cases of members of the Legislature, while
the mandamus of the Court commanded the Board to make the
declaration upon the returns; 3d. That as a matter of fact, the
evidence upon which the said Board assumed to make said, de-
claration, did not come before it, in the only form in which the
Board was authorised to consider it, even if its powers had ex-
tended to the hearing of protests in such cases, viz., by way of
evidence in support of formal protests coming through the County
Canvassers, as provided by law, but consisted (if any evidence there
was) of ex parte affidavits introduced before the said Board in se-
cret session for the first time; and 4th. That notwithstanding that
said Board had repeatedly declared that no question concerning
any County would be considered without notice to both parties, the
said so-called declaration was made without notice to any one, and
was hurried through at the last brief meeting of said Board, so far
as appears, without any consideration whatever.
The following are the Minutes of the Board as recorded for
the last two days of its session, the 21st and 22d November:
"Tuesday, November 21st, 1876.
"The Board met at 10 o'clock, all the members being present.
"A report was submitted to the Supreme Court, in obedience
to the order of the 17th inst., showing the number of votes re-
18
eeived by each person voted for at the election on the 7th day of
November, as returned by the Canvassers of Election forthesev-
eral Counties.* The Board adjourned until 4 p. m.
"4 o'clock p. m. The Board reassembled, all members be-
ing present,
"On motion of Mr. Stone, the following resolution was offered:
"Resolved, That the Board do now proceed to certify, deter-
mine, and declare the result of the election for Electors of Presi-
dent and Vice President of the United States. Upon a vote be-
ing taken, the resolution was rejected. Those voting nay being
Messrs. Purvis, Cardozo, and llayne. Those voting yea, being
Messrs. Dunn and Stone.
"After which the Board adjourned.
"Wednesday, November 22, 1876.
"The Board met at 10 a. m., all the members being present.
"The Secretary of State offered the following resolution, which
was unanimously adopted :
"Ressolved, That the votes cast for F. C. Dunn as Comptroller
General, and John B. Tolbert, as Superintendent of Education,
be counted for T. C. Dunn and J. R. Tolbert, respectively, for
the said offices of Comptroller General and Superintendent of
Education.
"The following certificate and determination of the Board was
submitted and adopted:"
(Here follows certificate of election of Electors.)
"The following certificate and determination of the Board was
submitted and adopted
(Here follows certificate of the election of State officers, So-
licitors for Circuits, and County officers and members of the
Legislature, the County officers and members of the Legislature
from the Counties of Edgefield and Laurens being omitted.)
"On the question as to whether the statement of the County
Canvassers of Laurens County should be included in the state-
ment and determination of the Board, the vote was as follows :
*This included Edgefield and Laurens.
14
Those voting in the affirmative were, the Secretary of State
and the Attorney General. Those voting in the negative were,
the Adjutant and Inspector General, Comptroller General, and
State Treasurer.
"On the same question, as to Edgefield County, the vote was
as follows: Those voting in the affirmative were, the Secretary of
State. Those voting in the negative were, the Adjutant and
Inspector Genoral, Comptroller General, Attorney General, and
State Treasurer.
"The Secretary of State submitted the following, and asked
that it be entered on the minutes:
" 'I vote yes on the question of including Edgefield and Lau-
rens Counties in the certificate and determination of the Board,
for the reason that the testimony before the Board as to irregu-
larities in these Counties, in the conduct of the election, is en-
tirely ex parte. H. E. HAYNE, Secretary of State.'
"The Attorney General submitted the following, and asked
that it be entered on the minutes:
"To the Board of State Canvassers:
" 'I vote in favor of declaring such persons elected from Lau-
rens County, as members of the General Assembly and County
officers for said County, as appears by the statement of the Board
of County Canvassers of said County to have received the high-
est number of votes cast at said election held on the 7th Novem-
ber, 1876.
" '/ do not regard the affidavit of J. H. Rutherford, one of the
Commissioners of Election of said County, explaining why he
signed the statement of the Board of County Canvassers under
protest, sufficient, without further evidence, to justify the Board
in declining to declare any persons lawfully elected as members of
the General Assembly or County officers for said County.'
" 'I vote in favor of making no declaration of what persons
were elected members of the General Assembly from Edgefield
County, or what persons were elected as County officers of said
County, for the reason that it appears from papers filed with us,
on behalf of candidates of the Democratic party, that one pre-
cincl in said County was established at a place not fixed by law;
15
and further, that it appears from affidavits of Managers of Elec-
tion at many of the precincts in said County, which affidavits are
filed with the Board, that such managers were unlawfully inter-
fered with, and prevented by threats and force from discharging
their duties as required by law.
" 'In the light of these affidavits, and became of the doubt I
entertain as to whether the precinct complained of having been a
lawfully established precinct, I do not think the Board can un-
dertake to determine what persons received the highest number
of votes cast for the several offices voted for at said election.
WILLIAM STONE.'
"On motion of the Attorney General, the Board adjourned
sine die."
This meeting of the Board was held without notification to
any of the parties in interest, and after the said parties had been
led to believe, as above stated, that no action would be taken by
the Board until an adjudication was had in the proceedings in
the Court; hence the only evidence attainable concerning the
action of the Board, is the foregoing record. From this it ap-
pears that the Board of State Canvassers, in a session of
hours, not only accomplished the canvass of the votes of the en-
tire State, for Federal, State, Circuit, and County officers, but
found time to mature a judgment absolutely disfranchising two
Counties of the State, depriving them of representation, and
in a large measure of local government. The Board was
without power under the Statutes and Constitution of the State,
to entertain such questions at all, being expressly prohibited
therefrom in cases of members of the Legislature, and was, more-
over, at the time, under the restraint of legal proceedings at issue
in the Supreme Court. We desire now to call attention to the cir-
cumstances of this action of the Board, upon their own theory of
their powers. By the express provision of the election laws of said
State, protests and contests are filed originally with the County
Canvassers, to be by them transmitted to the State Board. This
was done in large numbers of cases throughout the State. In the
cases of the election in Edgefield and Laurens Counties, no pro-
16
tests or contests were transmitted by the County Canvassers, with
the exception of a protest filed by Democratic candidates against
the counting of one box (Macedonia) in Edgefield, at which a
large Republican majority was polled; and your memorialists
were therefore wholly unaware that any effort would be made to
protest or contest the election in said Counties, nor could such
protest be legally made. Nevertheless, the Board of State Can-
vassers, as it would appear from their Minutes, permitted to be
brought before them certain affidavits making general allegations
of intimidation in these two Counties, and upon these ex parte
affidavits, without any notice to the parties interested, hastily de-
clared that no persons had been elected in these Counties ; that is
to say, by a vote of three to two, upon the single affidavit of one
of the Commissioners of Election for Laurens County, produced
for the first time before them, without notice to the other side,
they declared that no election was held in that County ; and by a
vote of four to one, they made a like declaration in the case of
Edgefield County, which had been carried by a large Democratic
majority, based upon a protest by Democratic candidates, which
was directed exclusively ayainst the counting of a Republican box,
and certain affidavits "of Managers from many precincts," intro-
duced for the first time before the said Board, without any notice
or opportunity for hearing given to the other side ; and this after
the said Board had given a formal and public pledge to consider no
protests or contests without due notice to the parties interested.
Another fact worthy of attention in the same connection, is
that large numbers of protests from the various Counties, alleging
fraud and intimidation of Democratic colored voters, and other
matters, were regularly and properly before the said Board, es-
pecially from the Counties of Charleston and Beaufort, in which
there were large Republican majorities, but the said Board paid
absolutely no attention to them.
In calling attention to the conduct of the Board of State Can-
vassers, in rejecting the votes Qf the Counties of Laurens and
Edgefield, apart from the question of their legal powers, it may
be pertinent to add some facts showing the "method" of the
Board in carrying on the canvass.
17
The Board consisted of five members: the Secretary of State,
Attorney General, Comptroller General, State Treasurer, and
Adjutant and Inspector General. All of these members were of
the same political party, and three of them, i. e., the Secretary
of State, Comptroller General, and State Treasurer, (a majority
of the Board,) were candidates on the same ticket for reelection.
The election returns, consisting of "statements." of County Can-
vassers, and precinct returns of Managers, were in the exclusive
custody of the Secretary of State. Pending the canvass, on
Saturday, November 18, Gen. John B. Gordon, a Senator of the
United States, who was present to witness the canvass, applied
to the Board for permission to inspect and copy these returns
during the interval of the adjournment of the Board from that
day until the following Monday. This request was refused; and
yet, after the adjournment of the Board on that day, and for the
whole of the next day, (Sunday,) the said Board and the Secretary
of State permitted the several members of the Board who were
candidates, with a corps of clerks, to have access to the returns
and copy them for their private benefit. (See Testimony of T. J.
Minton, before T. M. Wilkes, Referee of the Supreme Court,
pages 36, 37.) This course, calculated in itself to throw doubt
upon the fairness and impartiality of the Board, derives its full
significance from a discovery made during the investigation before
said Referee. This discovery was, that while the returns were
thus in the possession and custody of the Secretary of State, a
candidate for office, and while other candidates on the same side
were alone permitted to handle them, two of said returns were
fraudulently altered, so as to increase the vote of T. C. Dunn,
the Comptroller General, and one of the gentlemen holding the
twofold relation to the returns of Canvasser and candidate, to the
extent of fifty votes. This forgery was accomplished by changing
the number 10 in one return to the number 30, and by changing
the number 2 in another to the number 32. (See Testimony
before T. M. Wilkes, Referee, pages 26-39.) According to the
returns, as they originally came into the hands of the Secretary
of State or the Board of State Canvassers, Mr. Dunn's opponent
for this office had a majority of several hundred votes, which it
3
18
was claimed, however, would be reduced by the correction of
mere clerical errors to a bare majority of 48 votes. To overcome
these 48 votes, the forgery became necessary.
The Chamberlain Memorial states that, " Upon abundant proof
submitted to said Board, and in accordance with the laws of the
State, the Board of State Canvassers * * * declared that,
upon the evidence presented to them, the said Board was unable
to declare any persons elected in Edgefield and Laurens, owing
to the violence and frauds which attended the election in said
Counties."
And yet, the said Board (according to the Chamberlain
Memorial, p. 3, Congressional Record) were not unable to, but
on the contrary did, certify to the Supreme Court, on the 21st
November, 1876, as follows:
" The Board of State Canvassers, Respondents herein, hereby
certify, that it appears by the statements of the several Boards
of County Canvassers laid before the Board, that the following
named persons have received the number of votes set opposite
their respective names for the several offices designated, namely:"
(Then follows a table showing the number of votes given for
each of two candidates for Senator, and for each of ten candidates
for Representatives, from Edgefield, and each of two candidates
for Senator, and six candidates for Representatives, from Laurens,
of whom the one Senator and five Representatives from Edgefield,
and one Senator and three Representatives from Laurens, re-
ceived the highest number of votes, as plainly appeared.) The
Chamberlain Memorialists append to this statement this " Note:
All persons voted for, and the votes received by each, at said
election for any office, except those voted for for the offices of
Governor and Lieutenant Governor, are set out in said report; but
as no question was made, except as to the election in the Counties
of Edgefield and Laurens, the vote is omitted."
In the case of Gilbert Pillsbury vs. The Acting Board of
Aldermen, (So. Ca. Rep., N. S., Vol. 1, p. 30,) tried in 1868,
the Court decided that the Board of Aldermen, acting as Can-
vassers of election, under very ample powers conferred in the
Statute, had no right to exercise judicial powers, and had no
19
right to decide against the validity of the election which had been
held, and were bound to declare the result.
On this point Associate Justice Willard used this language:
" If the return had undertaken to show that no election had in
fact taken place, that would have raised an issue on which their
duty to declare the election depended; but the return only goes
to the extent of denying the legal validity of the election—a fact
altogether unimportant, so far as their duty is concerned."
The attempt of the Board of State Canvassers to decide against
the validity of the election in Edgefield and Laurens, was there-
fore flatly in the teeth of the adjudicated and expounded law of
South Carolina, as it stood at the date of their action, and before
the recent judgment of this special matter by the Supreme Court
in the case of Wallace vs. Mackey.
The assertion of the Chamberlain Memorial is therefore untrue,
viz., that "The result of the canvass of the election for members
of the House of Representatives showed the due election of one
hundred and sixteen members only."
On the contrary, the result of the canvass of the election
showed, according to the certified report of the Board of Can-
vassers themselves, as above stated, the due election of one
hundred and twenty-four members; and this result had become
matter of record in the highest Court of the State, and was known
to the people of the State seven days before the meeting of the
Legislature.
It is equally untrue, as stated, that when "the Board of State
Canvassers declared the due election of 116 members only," and
when " the Secretary of State so certified to each of the persons
declared elected by the said Board," they so declared and so
certified, as is claimed for them, "according to the laws" of the
State.
The Supreme Court of the State has in this matter expressly
decided to the contrary, and has pronounced the action of the
Board as illegal and void, besides being in contempt of the Court
itself.
There is no ground of law which authorizes the rejection of a
precinct on the ground that good votes are mixed with bad votes
20
in a ballot box. Majorities may be reduced, but entire polls
cannot be rejected on this ground. The present election law
makes the right of the voter to depend on his oath of qualification.
The principle of Pillsbury's case already cited, is that power
to declare the results of an election, does not embrace the power
to declare an election void for illegality.
IV.
Proceedings in the Supreme Court.
The Chamberlain Memorialists assert that, "while the
Board of State Canvassers were in the discharge of the aforesaid
duties imposed upon them by law, on the 14th November, 1876,
proceedings were instituted in the Supreme Court of the State,
with the view to limit and control their action."
In so far as the lawful action of the Board was concerned,
your Memorialists deny that the proceedings taken in the Court
were instituted "with the view to limit and control their
action."
It is to be presumed, in favor of the highest Court of a State,
that it would deal lawfully and impartially with all parties before
it, and that it would have effectually disappointed any such view,
had it been entertained in this case by the Relators.
The proceedings, according to the Chamberlain Memorialists,
were two petitions, "one praying for a Writ of Mandamus against
the Board, and the other praying a Writ of Prohibition." From
the nature of the Writ of Mandamus, it could not have been
prayed for with a view "to limit" the legal action of the Board;
and it could only "control" its action by requiring it to perform
the duties imposed upon the Board by the law.
"As to the Prohibition prayed for, it cannot, with any show of
consistency on the part of the Chamberlain Memorialists, be one
of their grievances against the Supreme Court, (as might be im-
plied from the language above quoted,) because they, very soon
after, in their Memorial, make a merit to their cause, that their
allies, the Board of Canvassers, applied to the Court for an order,
enjoining and restraining them from the exercise of judicial
21
functions; and the refusal of their application is made a ground
of complaint against the Supreme Court in the premises.
(Record, p. 3 and p. 4.)
A second grievance, of which they complain against the
Supreme Court, is, (on page 3, Record,) that the Court in these
proceedings, on the 17th November, issued an order, that the
Board of State Canvassers " do forthwith proceed to aggregate
the statements forwarded to them by the Boards of County Can-
vassers, and ascertain the persons who have received the highest
number of votes for the offices for which they were candidates,
respectively, at the general election held in the State on the 7th
instant, and certify their action in the. premises, under this order,
to the Court,. * * "
It will be observed, that, on the day before this order was
passed, the Board of Canvassers had themselves asked of the
Court an order "to permit said Board to proceed to perform the
merely ministerial duties imposed by law, to wit, to aggregate
the returns of the Boards of County Canvassers, and ascertain
the number of votes apparently cast for the several persons voted
for as candidates for office in said election." The main portion
of the order of the 17th November, (the order complained of,)
was almost, in terms, the same as the order applied for on the
16th by the Board itself. It is true, that the Court refused, on
the application of the Board, to order the Board to do its plain
duty under the law, and very properly left the Board to act on
its own direct responsibility under the law. The Court would
have placed itself in a false position to have done otherwise.
The application, on its face, shows that it was made in contempt
of the Court, and not in good faith, but with a view to entrap
the Court into a false position. The Chamberlain Memorialists
say, (p. 3, Record,) that "the issues between the Relators and
the Board of State Canvassers being thus made up, on the 16th
November the Board of State Canvassers came into Court, and
prayed the advice of the Court, as to whether it was intended by
said Court, by the rules to show cause on the suggestions for
Writ of Mandamus and Prohibition, made on the 14th day of
November, 1876, to restrain said Board from proceeding to
22
exercise the functions imposed upon said Board by law ; and said
Board, by their Attorneys submitted an order, if so intended, to
permit said Board to proceed to perform," &c.
The appropriate response of a Court to such an application,
would have been an immediate attachment of the Respondents
and their Attorneys for a contempt of Court, and the forbear-
ance of the Court in this case, while it shows that the Court was
free from passion or prejudice, also shows, that it erred in permit-
ting its dignity to be thus assailed. The natural fruit of its error
will be seen in the subsequent contempt of its authority by the
Board of Canvassers throughout the proceedings in Court; in
the conduct of the Board in adjourning while the Court was
actually considering the question of their duties under the law,
after the issues between the Relators and the Board had been
made up and argued; in the defiance of the decisions of the
Court by the Chamberlain Memorialists and their allies, in
usurping the Government of South Carolina, and in the daring
strictures upon the action of the Court with which the Cham-
berlain memorial teems throughout.
While the Court very properly refused the improper applica-
tion of the Board on the 16th, and left the Board to perform its
plain duty under the law, it with equal propriety, when it found
that the Board was not proceeding to perform its plain duties,
and was attempting to act contrary to the law, issued its per-
emptory order as above set forth.
It will be observed that parties interested in the results of the
election had informed the Court of the illegal action of the
Board of Canvassers, and had asked the Court to order them to
perform the duties prescribed by the law ; that the Board had an-
swered the rules, and had made evasive reply to the Court, as to
their action, and had resisted the prayer of the Relators. Their
whole course was well calculated to excite suspicion of an intent
to violate the law and to defeat the rights of persons elected, and
the will of the people.
The statute law of the State (Sec. 24, Chapter 8, Title 2 of
the General Statutes) quoted in the Chamberlain Memorial, re-
quired that "the Board, when thus formed, shall, upon the
23
certified copies of the statements made by the Board of County
Canvassers, proceed to make a statement of the whole number of
votes given at such election for the various officers, and for each
of them voted for, distinguishing the several Counties in which
they were given. They shall certify such statements to be cor-
rect, and subscribe the same with their proper names."
The order of 17 November (complained of by the Chamber-
lain Memorialists) directed the Board of Canvassers to do just
these things. And in issuing its mandate the Court took a very
proper precaution to ensure the prompt compliance of the
recusant Board of Canvassers, by requiring, also, that the
Board should "certify their action in the premises under this order
to the Court."
The Chamberlain Memorial scandalously denounces the Su-
preme Court for this portion of its order, requiring the Board
to certify its action to the Court, and makes a merit of the re-
sistance to it offered by the Board of Canvassers, on the
ground, that the writ of mandamus "could only be used to
compel the Board to go forward and make a decision, and not to
compel a particular decision. And further, that the writ could
not be used to bring before the Court the decision of the State
Canvassers for the purpose of review."
It will be observed, that the order of 17 th November no where
undertook "to compel a particular decision," and no where sought
"to bring before the Court the decision of the State Canvassers
for the purpose of review." It simply ordered the Board to do
what Section 24, above quoted, required of the Board, and it
ensured obedience to its order by requiring the Respondent to
report its action in course of such obedience.
The Court in this case ordered exactly what in the case of
Pillsbury, above referred to, it had ordered the Board of Alder-
men of the City of Charleston to do, viz., to canvass the returns
and declare the election as it appeared on the face of the returns
when aggregated.
The Board having ascertained the result of the election, and
on the 21st November, " certified their action in the premises
to the Court" the Supreme Court, on the 22d November, ordered
24
"that a peremptory mandamus do issue to the Board and to the
Secretary of State, commanding the Board forthwith to de-
clare duly elected to the offices of Senators and members of the
House of Representatives, the persons, who, by said certificate of
said Board to the Court, have received the greatest number of
votes therefor, and to forthwith deliver a certified statement and
declaration thereof to the Secretary of State ; and commanding
the Secretary of State to make the proper record thereof in his
office, and without delay to transmit a copy thereof, under the
seal of his office, to each person thereby declared to be duly
elected, a like copy to the Governor, and cause a copy to be
printed in one or more public newspapers of this State."
This order was in conformity with the provisions of the
statute presenting the specific legal duties of the Board of Can-
vassers and of the Secretary of State, and was in accordance
with the relief prayed for in the Petition.
The Board of Canvassers well knew that such was their duty
under the law, and should have needed no order of Court to
drive them to perform it. Had the Board been disposed, or had
it at all intended in good faith to observe the law, and declare
the election according to the returns, it would have done so be-
fore adjourning. Had its members intended to respect the
Court it would not have adjourned without giving notice and
protecting itself by the sanction of the Court in the premises.
Had its members doubted as to their powers, they would have
sought the decision of the Court on the question in doubt. But,
it did not so intend. On the contrary, it intended, if possible,
to defeat the law, to defeat the election, and to disobey and disregard
the Court. The Board adjourned in order to accomplish these
results, and was successful in its unlawful purpose.
It did more. Without seeking the decision of the Court as to
its powers and duties, it assumed, illegally, to decide against
the validity of the entire election in two Counties of the State,
and throwing out the statements of the County Canvassers of
these Counties from their aggregated statement of the election,
the Board made a false statement and certified determination of
the election to the Secretary of State; upon which false and
25
illegal certificate the Secretary of State issued his certificates to
a number of Senators and Representatives, less than the number
actually voted for by the people and returned by the precinct
Managers and County Canvassers as elected, and less than the
number required by the Constitution to compose the Senate and
House of Representatives of the State of South Carolina.
Y.
Edgefield and Laurens.
On page 3 (Record), the Chamberlain Memorial states that
the Board of Canvassers certified to the Court " that allegations
and evidence of fraud have been filed with this Board as to the
election held in Edgefield County by many of the Managers of
Election in said Connty ; that similar allegations have been
made and filed as to one or more precincts in Barnwell County;
that the statements of the Commissioners of Election for Laurens
County, laid before this Board, are signed by two Commissioners
only, one of whom signed, as he certifies, under protest. Said
Commissioner has also filed an affidavit that the reason he
signed said statement was because he was in fear of bodily injury
if he refused to do so, that various protests and notices of con-
tests have been filed from many other Counties of the State,
alleging irregularities on the part of the Election officers, illegal
voting, &c.
"That in view of said allegations, protests, and notices of con-
tests, none of which have been heard or passed upon by this
Board because of the pendency of these proceedings, this Board
cannot in their opinion properly ascertain and certify who have
actually.received the greatest number of legal votes in said Coun-
ties for the several offices voted for, unless they have the oppor-
tunity of investigating these allegations and hearing evidence
upon these protests."
It will be observed, that in the above certificate it is said that
none of the allegations of fraud, irregularities, and illegal voting,
and none of the protests and notices of contests have been passed
upon by the Board, and that the Board cannot properly ascertain
4
26
and certify who have actually received the highest number of legal
votes without opportunity for investigating these allegations and
hearing evidence.
This is certified to the Court, on 21st November, 1876, the
d;iy before their adjournment; and yet it is said, in the Chain-
berlain Memorial (Record, p. 4) "That before said writ (of man-
damus) was issued and served on the Board of State Canvassers,
said Board had sat out the ten days allowed by law, * * * *
and had canvassed the election returns, declared the election, and
adjourned sine die."
It is also said in the Petition to Judge Bond (Record, p. 9),
that the Board of Canvassers on the 22d November "having/w%,
legally, fairly, and honestly, according to the measure of their
best skill and judgment, discharged and fulfilled their powers and
duties as a Board of State Canvassers, did adjourn without day."
Again, on page 9 (Record), it is repeated, that the Board of
Canvassers, the "petitioners, having as hereinbefore stated, fully
discharged all their duties * * as a Board of State Canvassers,
adjourned without day."
In neither of these last statements is any suggestion made of
the omission of the Board to canvass the returns of Edgefield
and Laurens Counties, and to declare the election therein, by
way of exception to the assertion that they had full}7 done their
work.
No where is any explanation given of the nature or extent of
the allegations and evidence of fraud, as to the election in Edge-
field County, said to have been filed "by many of the Managers
of Election" in said County; nor of similar allegations "as to
one or more precincts in Barnwell County;" from which expla-
nation the Court, in the first instance, or the Congress now, or
any one, can judge of the bearing of such allegations and evi-
dences upon the election or any part thereof.
No where is any reason given why, within the ten days allowed
by law and during which they sat, they had not investigated
these allegations and heard evidence upon the protests and notices
of contest, which the Board of Canvassers and the Chamberlain
Memorialists assert was part of their duty under the law.
27
It is said, they were not passed upon because of the pendency
of these proceedings," but they themselves assert that the Court
refused to restrain and enjoin the Board, and the Board and the
Chamberlain Memorialists actually complain that the Court re-
fused to issue such order.
If the allegations and evidences of fraud prevented them from
declaring the election in Edgefield, why did "similar allegations"
not prevent them from declaring the election in Barnwell and
Counties where there were Republican majorities?
The Board did not, in their certificate to the Court, the day
before they adjourned, claim that allegations and evidences of
fraud, such as prevented them from declaring the election in
Edgefield, had been filed as to the election in Laurens, anil yet
they refused to certify the election in that County as well as in
Edgefield.
They allege that the statement of the Commissioners of Elec-
tion in Laurens was signed by two Commissioners only, one of
whom makes affidavit that he signed from bodily fear. It will
be noted that this Commissioner does not say, nor do the Board
of Canvassers pretend, that the certificate so signed was an untrue
or fraudulent statement, nor that it was contradicted by the re-
turns of the precinct managers in the County of Laurens. No
where does it appear by whom the Commissioner was put in
bodily fear, or that the acts of the unknown person at all influ-
enced the count of the votes.
On the bald technicality of the signatures to a presumptively
true statement, the election in a whole county is destroyed by a
Board which boasts that it discharged its functions fully under
the law.
Again, if general allegations and evidences of fraud in Edge-
field, not passed upon by the Board of Canvassers, and an affidavit
that one Commissioner in Laurens signed under bodily fear,
which assertion was not investigated, were sufficient to set aside
the election in those Counties, why were not "protests and no-
tices of contest from many other Counties of the State, alleging
irregularities on the part of election officers, illegal voting, &c.,"
none of which were "heard or passed upon by the Board," in
28
like manner sufficient to prevent the Board from certifying the
election in those Counties? Was it because the Counties of
Beaufort and Charleston, and other Counties where fraud and
intimidation were rife, gave heavy Republican majorities?
Throughout the statement it appears that the Board of Can-
vassers, in the first instance, and now the Chamberlain Mem-
orialists, following in their footsteps, assume to expound the law of
the State in direct opposition to the judgment of the Supreme Court.
They assume, in the matter of the returns and <|ualifications of
members of the State Legislature, to decide, ai/ainxt the certified
ret amis of the Count// Canvaxxerx, the rights of members to their
seats; and deliberately dispose of ten members elect from two
Counties of the State, against the right of the Legislature to pass
upon the returns and qualifications of such members, and against
the judgment of the highest Court of the State.
The Chamberlain Memorial is, in terms, an appeal to Congress
to review the action of the Supreme Court of the State, and teems
with strictures upon the motives and action of the Court, which
they allege '"proceeded wholly without jurisdiction or authority
of law, and its acts were simply void," and which they charge
"acted hastily, passionately, arid oppressively."
Among other accusations against the Court, (on page 4 Re-
cord,) it is said that "the Court, without warrant of law, usurped
the functions of the Board, and undertook, in effect, to determine
and declare the election."
An examination of the orders and action of the Court will
show this to be utterly unfounded.
It is also said "that in drawing to itself the record, or a
portion of it, of the Board of State Canvassers and then review-
ing and passing judgment 011 the same, the Court did precisely
what it solemnly decided it could not do, in the case Ex Parte
Carson 5, S. C. Reports (N. S.) 117."
We have already shown that the Court did not " draw to itself the
record of the Board, or a portion of it, and then review and pass
judgement on the same," and it will be seen by an examination of
the case Ex Parte Carson, that the Court has not been inconsistent
with itself in expounding the election law of South Carolina.
29
Ex Parte Carson, 5 Rich., does not decide or look toward de-
ciding that the Supreme Court has not.the right to issue a writ
of certiorari in aid of its jurisdiction. The part of the order
italicized in the Chamberlain Memorial, from which one of the
Court dissented, was simply to get a paper, which could have
been brought by a subpoena duces tecum.
The order asked for by the Board of Canvassers, was one
which the Court could properly grant only by consent, and
would have been passed by consent, had it not been for the con-
tumacy of their Counsel in insisting on the word "may" in-
stead of " shall," thus leaving it optional with the members of
the Board whether they would perform their plain ministerial
duty at their own will and pleasure or not. The order for the
peremptory writ of mandamus, should be read in connection with
the opinion and reasoning of the Court which preceded it, to wit:
" The necessity of an Immediate decision, prevents for the pres-
ent, any extended views of the Court on the question submitted
for its determination. Neither does it propose now to declare its
views of the extent or the character of the powers of the Board
of State Canvassers, except so far as they relate to the election
of members of the General Assembly.
"The Constitution by the 14th Section of the 2d Article, de-
clares that 'each House shall judge of the election return and
qualifications of its own members.' It was necessary, therefore,
for the organization of each House, that a mode should be pro-
vided through which the choice of the electors might be made
known, so far as it primarily appeared from the evidence which
the Statutes required should be submitted to them.
" Without some such mode of ascertaining in the first instance
the probable will of the constituency, there could be no organi-
zation of either House. It was not intended by the authority
conferred on the State Board, to delegate to it any of the power
vested by the Constitution in ' each House,' but merely to pro-
vide the mode and manner, which was deemed the most reliable
and effective in ascertaining in each County the will of the
people expressed through the ballot-box as to the offices to be
filled by the election. The machinery by which the proposed
30
end was to be met, was through the appointment of precinct
Managers, Boards of County Canvassers, and the Board of State
Canvassers. The several 'statements' submitted to the last
named Board, as required by the Act, provided the means, not
of judging 'of the election return anil qualifications of the
members of either House;' but of ascertaining who, according
to the mode bv which the fact was to be established, were entitled
to the certificates, not to show the election in the terms of the
Constitution, but the apparent choice of the people as expressed
in the ' statements ;' and this conclusion was to be reached by
the evidence of the number of votes cast, and of the parties in
whose favor the greatest number of votes cast was given for the
Senate or House, as the case might be. It was not competent
for the Board to determine, as the House only could, who, in
fact, was the chosen member; for the extent of their means to
that end, were not commensurate with that House. One aver-
ring against the seat of another, who is admitted by possession of
the certificate, does not assert his right by way of appeal from
the action of the Board, but asks the intervention of the House
by force of its inherent and original jurisdiction."
It should also be remembered that by admission of Counsel for
the Relators and the Board, there was no difference or discrep-
ancy between the Managers' count at the polls, their statements,
the County Canvassers' statements, and the certified statements
of the State Canvassers, so far as the election of members of the
Legislature was concerned.
The Writ of Mandamus is as follows :
"The State of South Carolina—In the Supreme Court.
"The State of South Carolina, ex Relatione R. M. Sims, Johnson
Hagood, S. L\ Leaphart, Jas. Conner, H. S. Thompson, and
E. W. Moise,
versux
"H. E. Havnc, Secretary of State, Chairman; and F. L. Car-
dozo, State Treasurer; T. C. Dunn, Comptroller General;
William Stone, Attorney General; H. W. Purvis, Adjutant
81
and Inspector General, Members of the-Board of State Can-
vassers, and II. E. Ilayne. Secretary of State.
"Tub Statu of South Carolina.
"To H. E. Hayne, Secretary of State, Chairman ; and F. L. Car-
dozo, State Treasurer; T. C. Dunn, Comptroller General;
William Stone, Attorney General; II. W\ Purvis, Adjutant
and Inspector General, Members of the Board of State Can-
vassers, and II. E. llayne, as Secretary of State.
"Whereas, R. M. Sims, Johnson Ilagood, S. L. Leaphart, Jas.
Conner, H. S. Thompson, and E. W. Moise, Relators, did, on
the 14th day of November, A. I). 1876, file their petition and
suggestion in the Supreme Court of this State against you for a
Writ of Mandamus; and whereas, the said Court did thereupon,
on the same day, issue a rule against you to shew cause why the
said writ should not issue, to which said rule you duly re-
sponded.
"And whereas, the said Court did, on the 22d day of Novem-
ber, A. D. 1876, after consideration of the matters in issue, order
and adjudge that a writ of peremptory mandamus do issue,
directed to you, commanding the said Board of State Canvassers
forthwith to declare duly elected to the offices of Senators and
members of the House of Representatives the persons who, by
the certificate of the said Board to the said Court, had received
the greatest number of votes therefor, and to forthwith deliver a
certified statement and declaration thereof to the Secretary of
State, and commanding the Secretary of State to make the proper
record thereof in his office, and without delay transmit a copy
thereof, under the seal of his office, to each person thereby de-
clared to be elected, and a like copy to the Governor, and cause
a copy thereof to be printed in one or more public newspapers of
this State.
"Now, therefore, we do command you, the said Respondents,
immediately after the receipt of this writ, that you. II. E. Hayne,
Secretary of State, Chairman; F. L. Cardozo, State Treasurer;
T. C. Dunn, Comptroller General; William Stone, Attorney
General; and H. W. Purvis, Adjutant and Inspector General,
32
forthwith do declare duly elected to the offices of Senators and
members of the House of Representatives of the General Assein-
bly of the State of South Carolina, the persons who, bv the ccr-
tificate of the said Board of State Canvassers to the said Supreme
Court of the said State, have received the greatest number of
votes therefor, and do forthwith deliver a certified statement and
declaration thereof to H. E. Hayne, Secretary of State:
"And that you, H. E. Hayne, Secretary of State, do immediate-
ly, upon the receipt of said certified statement and declaration,
make the proper record thereof in the office of Secretaryof State,
and do without delay transmit a copy thereof, under the seal of
the Secretary of State, to each person thereby declared to be
elected, and a like copy to the Governor of the said State, and
do cause a copy thereof to be printed in one or more public news-
papers of the said State.
"And how you the said Respondents shall have executed this
our writ, make known to the said Supreme Court forthwith.
"Witness, Albert M. Boozer, Clerk of the Supreme Court of
the State of South Carolina, at Columbia, this twenty-second day
of November, A. D. 1876.
ALBERT M. BOOZER,
Clerk of Supreme Court of S. C."
The return is commanded "forthwith," in accordance with fa-
"miliar law, when no time is specially directed in the order for the
issuance of the writ, and in legal parlance means twenty-four
hours, of which the Board and their Counsel were fully advised
by the Court. That in this order and writ, the Court did not
exceed its powers, is well settled law. (See Fuller vis. Hilliard.)
The Board and their Counsel were apprised of the order for
the writ before their adjournment. One of their number and
their Counsel were in Court when the order was announced, and
they were parties to the proceeding. Where, it may he asked,
even if the Court had made no order, does the Board of Can-
vassers derive power to reject a poll ? Where to reject the votes
of two Counties, and disfranchise their voters? They did not do
so in the matter of State officers, though their action there was
38
fraudulent and in excess of their power in other regards. Legis-
lative bodies may reject polls, may create vacancies. They have
power to fill vacancies by writs of election, and are not limited
to the test of candidates receiving the highest number of votes,
but can inquire and decide whether an election gives fair repre-
sentation, and can supply any defects, intrinsic or extrinsic ; but
when were ever such powers claimed in a Court for a Board of
Canvassers, possessed of only ministerial jurisdiction, without an
instant and decided negative ? It had been decided in this State
long ago, that the Board of State Canvassers who had adjourned
could be reconvened. (See State vs. Canvassers, 4 S. C.) Their
sittings in this instance were adjourned, not by operation of law,
as is falsely claimed, but by their own clandestine and fraudulent
action to defeat the will of the people, and the supervisory control
over them, vested by the Constitution in the Supreme Court.
It is the settled practice in mandamus, here and elsewhere,
where a ministerial duty is to be performed, for the Court to de-
fine the exact nature of the act to be performed, and embody it
in its peremptory mandamus; as, for example, where the Comp-
troller General is to deliver a warrant, or the Treasurer a check
for money, the writ describes the nature of the warrant or check,
and orders accordingly. It is only where there is a discretionary
or judicial act to be performed, that the peremptory mandamus is
limited to merely ordering the officer to proceed and exercise the
jurisdiction, without defining the precise act to be performed.
To direct a Court is said to be a political act. Non constat. It
may effect a political result, but it is a legal act, a judicial act,
not a political act; for a political act involves the exercise of po-
litical discretion. Under the Constitution and laws of South
Carolina, the determination of the question as to who has recei ved
the highest number of votes at an election, has never been a po-
litical act. A.s distinguished from a political act, it has always
been a judicial act, and the jurisdiction has been exercised imme-
morially. Whether it be exercised by quo warranto, finally, or
by mandamus, as to prima facie right, cannot affect the charac-
ter oi" the act or the nature of the jurisdiction. If mandamus
5
34
infringes upon the inhibition against political acts, so also, and
in greater degree, does quo warranto.
VI.
Proceedings for Contempt.
What the Relators informed the Court, on November 24, can
be most satisfactorily shown by the Information itself, which is as
follows :
Information.
"And now come into Court the Relators aforesaid, and give
the Court to understand and be informed, that on the pleadings
filed in this Court by the Relators against the Respondents, the
questions submitted to the Court for its adjudication were the
duties and powers of the Board of State Canvassers, under the
law and the rights of the Relators and the citizens of the State
thereunder. That your Relators asked for a rule to shew cause,
and inserted in said rule an ad interim order that no further pro-
ceedings should be had by the said Board of State Canvassers
until the decision of the Court upon the matters submitted to it.
That your Honors refused to grant such ad interim order, and di-
rected that it should be stricken out of the rule, stating in sub-
stance that the Board could not and would not do anything after
rule had been served upon them from this Court. If they do, it
will be a high contempt of Court.
"That the Board of State Canvassers, by their resolution, filed
as an exhibit in this cause, resolved 'That this Board will not
act upon any proposition until the question of its powers and du-
ties he decided by the Supreme Court.'
"That on the 22d day of November instant, the Board of State
Canvassers filed in Court a certified statement of the persons who
had received, at the general election held on the 7th of November
instant, the greatest number of votes for the offices for which they
were respectively candidates, according to the statements of the
Boards of County Canvassers.
"That the Board of State Canvassers in the same report in-
formed the Court that there were clerical errors in regard to T.
C. Punn and J. R. Tolbert, candidates on the one side for Comp-
35
troller General and Superintendent of Education, respectively ;
and that there were contests and protests from the Counties of
Edgefield, Barnwell, and Laurens, on account of irregularities,
frauds, ami intimidation in said Counties. But in said report
the Board of State Canvassers did not claim any authority to
correct these clerical errors or to adjudicate the protests and con-
tests, their authority and duty in these respects being then under
the consideration of the Court.
"That on the 22d day of November instant, this Court, by its
order, commanded 'the Board of State Canvassers forthwith to
declare duly elected to the offices of Senators and Members of
the House of Representatives the persons who, by said certificate
of the said Board to the Court, have received the greatest num-
ber of votes therefor, and to forthwith deliver a certified state-
ment and declaration thereof to the Secretary of State, and com-
manding the Secretary of State to make the proper record thereof
in his office, and without delay transmit a copy thereof, under the
seal of his office, to each person thereby declared to be elected,
and a like copy to the Governor, and to cause a copy thereof to
be printed iri one or more newspapers of the State.'
"That immediately thereafter, and without adjournment, the
Court took up the matter of Electors for President and Vice
President, wherein these Relators alleged that there were many
errors and irregularities in the statements of the County Can-
vassers, and many discrepancies between the County Canvassers'
statements and the Managers' returns of the precincts and
prayed that the Board of State Canvassers should compare the
statements of the County Canvassers with the Managers' returns,
so that the true result of the election should be reached, and that
the Board should perform their duties according to law. and sub-
mit to this Court their report, with all official papers on which the
same is in any manner based
"And this Court thereupon issued its rule dire ted to said
Board of State Canvassers, to shew cause why the prayer of the
Relators should not be granted. That the said Board of State
Can vassers, by their Counsel, asked for time to answer said rule,
alleging, among other things, that ihe duties imposed upon the
36
Respondents by the previous order of the Court, in regard to
Members of the General Assembly, would occupy time and pre-
vent due attention to the rule; and time was accordingly granted.
"That while these proceedings were being had in Court, and
the Respondents were asking the indulgence of the Court, the
Respondents met without the knowledge of these Relators, or of
any of the parties interested, altered the alleged clerical errors
in favor of T. C. Dunn and J. R. Tolbert, candidates of their
own party, and thereby reversed the certified aggregation of votes
which they had submitted to the Court, and further refused to
certify as elected the persons who, in Edgefield and Laurens
Counties, had received the greatest number of votes for Members
of the General Assembly, as appears by the certified report of
the said Board submitted to this Court, and thereby decided the
protests from those Counties in favor of their own party and
against these Relators and the Democratic members from those
Counties, one member of said Board voting against said action
of the Board in this regard, because the testimony was entirely
ex parte. And the said Board of State Canvassers further de-
clared elected all the Republican candidates for Electors, and
declared F. L. Cardozo elected as Treasurer, T. C. Dunn elected
as Comptroller General, H. E. Hayne elected as Secretary of
State, R. B. Elliott elected as Attorney General, John R. Tol-
bert elected as Superintendent of Education, and James Kennedy
elected as Adjutant and Inspector General—it not appearing by
the minutes of said Board that either of the said F. L. Cardozo,
T. C. Dunn, or H. E. Hayne withdrew from said Board when
their election was acted upon and declared—and then adjourned
sine die between the hours of 12 m. and 1 p. m. of the twenty-
second; all of which will appear by the certified copy of the
minutes of the said Board of State Canvassers hereto annexed.
"And'these Relators show to this Court that the mandate and
order of this Court have been disobeyed by the said Board of
State Canvassers. That while in Court a party to the proceed-
ings to decide the powers and duties, and submitting itself to the
jurisdiction of the Court, the said Board of State Canvassers has .
not waited for the judgment of the Court determining its legal
37
duties arid powers, and the proper execution of them; but has
assumed to construe the law and decide those questions for itself
and act on its own decision, and to place itself, by adjournment,
beyond the reach and control of the Court.
"And these Relators submit this information to the Court that
such order may be made thereon as to the Court may seem meet
and proper. (Signed) JAMES CONNER,
Counsel."
The statement that upon the reading of the affidavit, (page*4,
in the Congressional Record,) the Court at once proceeded to ad-
judge the members of the Board guilty of contempt, and that in
reference to the proceeding for contempt the Court acted "hastily,
passionately, and oppressively," is simply false. Upon the read-
ing of the affidavit, the Court asked that there should be dis-
closed, verbally and in substance, what the return would be ; and
in so doing, acted in accordance with established practice. The
application for time being addressed to the discretion of the
Court, the inquiry was normally and kindly made as to what mat-
ters they proposed to embrace in their return, and bearing on the
necessity for further time. Counsel declined to make any
statement, and would not even say that the members of the Board
would at any time make return to the writ of peremptory man-
damus; and they have never done so, and are still in flagrant
contempt of the highest Court of the State. The Court, so far
from acting hastily, passionately, and oppressively, took unusual
pains to inform the Counsel of the members of the Board of what
they should do. and gave the parties the benefit of the night for
reflection, in the vain hope that they would not persist in their
contumacy and contempt, and would thus relieve the Court from
the unpleasant alternative of cither punishing them for contempt,
or forfeiting entirely its own dignity ; and it was only after ad-
juring them to take the proper and respectful course, and giving
them time for cool reflection and proper action, and on the fol-
lowing day, asking if any motion was to be made on their behalf,
and no response being made, that the Court reluctantly adjudged
them guilty of contempt, in the following judgment and order:
88
" State of South Carolina, \
In the Supreme Court. J
The State of South Carolina, Relatione R. M. Sims, Johnson
Hagood, S. L. Leaphart, James Conner, II. S. Thompson,
and E. W. Moise,
versus
II. E. Hayne, Secretary of State, Chairman, and F. L. Cardozo,
State Treasurer, T. C. Dunn, Comptroller General, William
Stone, Attorney General, and H. W. Purvis, Adjutant and
Inspector General, Members of the Board of State Can-
vassers, and H. E. Hayne, as Secretary of State.
In Re Rule, vs.
of Board of State Canvassers, for Contempt.
" The Relators in the above cause having filed their Suggestion
in this Court, on the 14th day of November, 1876, praying, among
other things, that the said Respondents might be commanded by
this Court to perforin their duties as State Canvassers according
to law, and the said Respondents having answered thereto, and
the duties and powers of the Board of State Canvassers having
been submitted to this Court and argument heard thereon, and
the said Respondents having adopted their resolution, ' That this
Board will not act upon any proposition until the question of its
powers and duties be decided by the Supreme Court;' which
said resolution was duly filed as an exhibit in this cause. And
the said Board of State Canvassers having, in obedience to an
order of this Court, made their certified report to this Court,
setting forth the persons who had received the highest number of
votes for the offices for which they were respectively candidates,
at the general election held in this State on the 7th instant.
And this Court having, on the 22d day of November, 1876, made
its order that a Writ of Mandamus do issue, directed to the said
Respondents, commanding the said Board of State Canvassers
forthwith to declare duly elected to the offices of Senator and
members of the House of Representatives the persons who, by
the certificate of the said Board of State Canvassers to the said
Court, had received the greatest number of votes therefor, and
39
forthwith to deliver a certified statement and declaration thereof
to the Secretary of State, and commanding the Secretary of State
to make the proper record thereof in his office, and without delay
transmit a copy thereof, under the seal of his office, to each person
thereby declared to be elected, and a like copy to the Governor,
and cause a copy thereof to be printed in one or more public
newspapers of this State.
"And the said Board of State Canvassers having, on the said
22d of November, and while this Court was in session, met and
made their other certified statement of the persons who had ve-
ceived the greatest number of votes for members of the Senate
and members of the House of Representatives from the several
Counties, and declared the same duly elected, and delivered
said certified statement and declaration to the Secretary of
State; but the said Board of State Canvassers refused to certify
and declare as elected the persons who had received the greatest
number of votes for members of the Senate and members of the
House from the Counties of Edgefield and Laurens, and ad-
journed sine die.
"And this Court, in pursuance of its order dated the 22d day of
November, having issued its Writ of Mandamus, directed to the
said Respondents, commanding them to do and perform the
matters and things hereinbefore set forth in their said order, and
to make known to said Court forthwith how they, the said Re-
spondents, shall have executed said Writ.
"And said Writ having been duly served upon the said Respon-
dents, and the said Respondents having failed to obey the mandate
of this Court expressed in said Writ, and having failed to make
any return to said Writ, showing their performance and execution
of the mandate of the Court, or good and sufficient cause why the
same had not been done. And thereupon a Rule having issued
from this Court on the 24th day of November, directing the said
Respondents to show cause why they should not be attached for
contempt in not obeying said mandate of the Court; and said
Rule having been served on the said Respondents, and the said
Respondents having appeared in Court in answer to said Rule,
and having failed to make any return thereto, or to show any
40
good and sufficient reason why they had not obeyed and executed
the mandate of this Court:
" It is now Adjudged, That the said II. E. Hayne is in contempt
of this Court, and It is Ordered, That he do pay a fine of fifteen
hundred dollars, and that the Sheriff of Richland County do take
him, the said H. E. Hayne, into custody, and confine him in the
common Jail of said County, until he be discharged by the order
of this Court.*
[seal] (Signed) F. J. MOSES."
"Nov. 25, 1876."
Not one cent of the fine has ever been paid, and in a very short
time they were relieved by Judge Bond from imprisonment. The
Chamberlain Memorial would seem to seek to excuse the contempt
of the culprits by reason of their high official status ; but such a
plea is not in accordance with the genius of law, justice, or re-
publican institutions. There was presented the very unusual
spectacle of parties in high official position resisting in concert,
deliberately and designedly, the process of the Court and the
mandate of the law. Their- conduct was well calculated to call
forth hasty and passionate expressions from those upon whose
decisions the security of society depends, but no such expression
was elicited; and yet calumny and slander are heaped upon them
as for partisan purposes they had been hitherto heaped upon the
people of the State.
It is a common learning that the constitutional provision cited
is inapplicable. See Watson vs. Citizens' Savings Bank, 5 Rich.
VII.
Organization of the House of Representatives.
The Report of the Special Committee of the body known as
the Mackey House of Representatives of South Carolina, " re-
lating to the organization of that body, and the constitutional
validity thereof," has been adopted by that House, and ordered
*A similar Judgment was rendered in the case of each one of the
Respondents.
41
to be laid before the President and the members of both Houses
of the Congress of the United States. It is an ingenious and
able paper, presenting a plausible argument in support of the
action of Mr. Chamberlain and his associates, in their unlawful
assumption of authority in this State. There is no need to ex-
aminb its propositions in detail. A brief examination of the
first of these, upon which the others rest, will demonstrate the
fallacy of the reasoning of the Committee, and prove conclu-
sively, by the highest authority, that "the body presided over
by Mackey has no legal status whatever." Summed up in a few
words the argument of the report is as follows:
The Board of State Canvassers had full authority to refuse
certificates to the members elect from Laurens and Edgefield.
Their action could not be reversed by the Supreme Court. That
thus there were only 116 members elect to the House of Repre-
Sentatives; that the Clerk of the late House, having full authority
in law to make up the roll of members, was justified in putting
this number on his roll, and in excluding all others ; that the
Mackey House, having been organized with fifty-nine members,
the majority of one hundred and sixteen, was duly constituted,
and that consequently all its action is in strict accordance with
the Constitution.
It will be observed that the keystone of this argument is,
the legality of the action of the State Board of Canvassers. If
this position be not maintained, the whole fabric falls to the
ground, and the organization of the House under Mackey, and
all of the subsequent action of the Chamberlain Government, must
perforce be illegal. The legality of the action of the Board of
State Canvassers depends upon three propositions :
1. Either that this Board heard the protest and contest with
regafd to the elections in Laurens and Edgefield, and decided
that they were fraudulent;
2. Or that, without .hearing the protest and contest, they
had facts before them which induced the belief that the elections
were invalid, and that they, inconsequence thereof, refused to issue
certificates of election;
6
42
3. And that in this they were acting with authority of law.
I. No protest or contest was in fact heard. The idea of a
protest, or contest, involves judicial action upon a case made, in
which there are parties complaining and parties defending; the
result of which depends upon facts established by legal testimo-
ny, governed by law produced and relied upon. It is a trial be-
fore a legal tribunal. In the present case the prima facie count
of the ballots cast in these two Counties showed that certain
Democrats had the highest number of votes. No notice of pro-
test was served on any of them. No notice of contest was given.
No testimony, in a legal sense, was heard. No witnesses were
examined. Certain ex parte, statements, it seems, were somehow
made before, or put into the possession of, the Board. But there
was no pretence of any legal examination into the cases. Indeed
the two members of the Board who had characters to lose (the
Secretary of State and the Attorney-General) voted against the
action of the majority in the case of Laurens County ; and the
former filed his formal protest against the action of the Board in
relation to both of the Counties, on the ground that they had
decided upon an ex parte showing.
II. But it may be said that the Board heard no protest or
contest, andyet that they saw enough to prevent them from issuing
certificates to the members elect from Laurens and Edgefield.
It is difficult to catch the distinction between this course of ac-
tion and one adopted after hearing a protest. The election was
either valid or invalid. If valid, the certificates were issued as
a matter of course. How could it be declared invalid without
the examination of testimony, and how could testimony be ex-
amined unless the issue was made as to the validity of the elec-
tion, and how could the issue be made without a protest or a con-
test ? If the Board of State Canvassers pass at all upon the
validity of the election, they must do so in some judicial capacity.
In this capacity they decide upon issues raised before them. How
can these issues be made, except by parties interested in setting
aside the result against parties interested in sustaining it?
43
It must be borne in mind that there is no pretence that
Laurens and Edgefield failed to hold an election. The people
met on the day fixed by the amendment of the Constitution ; the
Managers of election opened the polls; the ballot boxes were
regularly prepared ; the ballots were cast, and after the polls
were 'closed the boxes were opened, the ballots taken out by the
Managers, and the votes were counted, and the result certified.
Under these circumstances, could the Board of State Canvassers
declare that there was not a valid election ?
Fortunately we are not left to any theory on this subject,
and we are spared a long examination into the principles of law
applicable to it.
In the case of Gilbert Pillsbury and others vs. The acting
Board of Aldermen of the City of Charleston (1 South Carolina
Reports, 30), the whole matter is discussed. This case was elab-
orately argued before the Supreme Court by Messrsi Chamber-
lain and Corbin, and the Court, recognizing the force of their
logic, ruled with them. That case decides as follows : The
5th Section of the Act to provide for the election of the officers
of the incorporated cities and towns of the State, &c., ratified
September 25, 1868, providing that "the Managers of election
shall decide contested cases, subject to the ultimate decision of
the Board of Aldermen or Wardens when organized, except
when the election of a majority of the persons voted for is con-
tested or the Managers are charged with illegal conduct, in which
case the returns together with the ballots, shall be examined and
the case investigated by the acting Board of Aldermen, who
shall declare the election, and their decision shall be binding on
all parties, does not authorize the acting Board of Aldermen in a
cane coming properly before it to adjudge the election to be illegal
and void. Its authority is limited to an examination of the
returns together with the ballots, and a declaration of the results
of the election."
III. The election having taken place, the Board of State
Canvassers had no warrant inlaw for hearing any protest or con-
test, or for passing any opinion upon the validity of the election.
44
The powers of the Board of State Canvassers are derived
entirely from the Statute : " The Board shall, upon the certified
copies of the statements made by the Board of County Canvas-
sers, proceed to make a statement of the whole number of votes
given at such election for the various officers, and for each of
them voted for, distinguishing the several Counties in which they
were given. They shall certify such statements to be correct,
and subscribe the same with their proper names. They shall
make and subscribe on the proper statement a certificate of their
determination, and shall deliver the same to the Secretary of
State. Upon such statement they shall then proceed to deter-
mine and declare what persons have been, by the greatest number
of votes, duly elected to such offices or either of them."
This is their general duty with regard to all offices—to make
a statement of the whole number of votes given at sucli election
for the various offices and each of them ; to subscribe on such
statement a certificate of their determination, and deliver the
same to the Secretary of State. Upon such statement they shall
proceed to determine and declare what persons have been, by the
greatest number of votes, duly elected to such offices. Such is
their duty on the count, and it is manifestly simply ministerial—
to count the votes and declare who has received the highest
number.
The Act then adds : "'They shall have power, and it is made
their duty, to decide all cases of protest or contest that may
arise, when the power to do so does not, by the Constitution, re-
side in some other body." In other words, no power whatsoever
is given them to do anything but to make up, from the statements
of the County Canvassers, a statement of the whole number of
votes given at the election; and from such statement to deter-
mine and declare what persons have been, by the greatest num-
ber of votes, duly elected—except in certain cases of protest and
contest, which do not, under the Constitution, reside in some
other body. If an election takes place, and the managers count
the votes, and the County Canvassers send up their statements
to the Board of State Canvassers, this Board can, under anycir-
sumstances, do but two things : 1st. Make up a statement from
45
the statements of the County Canvassers, of the whole number of
votes given at such election. 2d. And decide contests and pro-
tests in certain excepted cases.
The only inquiry left for us, therefore, is, whether the power
to decide contests or protests in the case of an election for mem-
bers of the House of Representatives, by the Constitution, re-
sides in some other body than the Board of State Canvassers.
By an express provision of the Constitution, the House is the
sole judge of "the election returns and qualifications" of its mem-
bers, The Board of State Canvassers, in determining such a
question, violated the Constitution ; and in determining any ques-
tion as to the validity of the election, not only violated the Con-
stitution, but assumed a power not conferred upon it by the Acts
of Assembly.
We have thus demonstrated that the action of the Board of
State Canvassers, upon which alone rests the legality of the
Mackey House, is illegal and void. But it is said that the Clerk
of the late House, who by law and usage made up the roll of the
House, could not admit any other names upon his roll than those
of persons holding the certificates of the Board of State Can-
vassers.
There is no law in South Carolina conferring this power on
the Clerk. The Committee rely on the eightieth rule of the
House of Representatives of this State, which directs that "in all
cases not determined by these rules, or by the laws, or by the
Constitution of this State, * * * this House shall conform
to the Parliamentary law which governs the House of Represen-
tatives of the United States Congress." But the Clerk of the
United States House of Representatives does not make up the
roll of the House by authority of any rule of that body, but in
obedience to the positive requirements of an Act of Congress.
The Committee, therefore, have no authority in law or in the
rules of the House for their assumption. And we deny that it
has been the usage in South Carolina for the Clerk to make up
the roll. Such an usage certainly did not exist under the old
Constitution. Nor has it existed under the last Constitution.
The first session at which the Clerk assumed to organise' the
46
House was in 1872, and he repeated it in 1874. At every pre-
vious session, the members elect met in the Hall of the House of
Representatives, called some member elect to the chair, under
whose direction the roll of election districts was called, where-.
upon the members produced their credentials, were sworn in by
the Chairman, and, when this was done, voted for their Speaker.
In 1872 and 1874, the services of a Chairman were dispensed
with, and the Clerk called the roll. But even in these cases, the
members elect, when their names were called, produced their ere-
dentials at the desk. Why? That the Clerk should pass upon
them ? Surely not; for the House, as we have seen, is the sole
judge of the qualifications of its members. But for the judg-
ment of the House, should they be called into question.
But even admitting that some evidence of election was neces-
sary, some credential for the appearance and qualification of the
members elect, what better evidence could be furnished than that
held by the members who were excluded ? The Board of State
Canvassers had, under their hands, certified a statement, made
up from the certified statements of the County Canvassers, of the
whole number of votes given at the late election for the various
officers, and for each of them voted for, distinguishing the several
Counties. They had determined and declared what persons had
received the highest number of votes at the election for members
of the House of Representatives; and had, in obedience to the
order of the Supreme Court of the State, in a case pending
therein, in which they had submitted themselves to the jurisdic-
tion of the Court, certified who had received such highest num-
ber of votes ; and their statement of the persons who had been
elected, so certified to the Supreme Court, was thus a record in
the highest Court of the State. Of this record every person in
the State had notice, binding upon him. So the acting Clerk
knew that there were one hundred and twenty-four members elect
to the House of Representatives, and he could not, therefore,
declare less than a majority of this number a quorum of the
House.
But the question whether the organisation of the Mackey
House was constitutional and legal, no longer depends upon ar-
47
gument. The question arose in the Supreme Court of the State
in the ease of The State ex rel. W. H. Wallace against H. E.
Ilayne, Secretary of State, and E. W. M. Mackey. This was
an application for a mandamus to compel the delivery of the re
turns of the Managers of Election of the vote for Governor and
Lieutenant Governor, to the Speaker of the House of Represen-
tntives, as required by the Constitution of the State.
In giving judgment in that'case. Chief Justice Moses said:
" This is a Suggestion, filed by leave of the Court, in the name
of the State at the relation of William II. Wallace, claiming to
be the Speaker of the House of Representatives of the State
of South Carolina, against H. E. Hayne, as Secretary of State,
and E. W. M. Mackey. The Petition sets forth that a general
election was held in said State on the 7th day of November, A.
D. 1870, for the offices of Governor and Lieutenant-Governor of
South Carolina; and upon such election the returns were duly
transmitted to the said H. E. Hayne, as Secretary of State, in
accordance with the provisions of the Constitution and laws of
the State. This allegation is admitted by Respondents. The
Petitioner alleges that the House of Representatives convened in
the city of Columbia on the fourth Tuesday in November, and
after convening, duly organized and elected him, William H.
Wallace, Speaker, and notified the Senate; that the Petitioner
as such Speaker thereupon demanded of the said H. E. Hayne,
Secretary of State, the returns of the election for Governor and
Lieutenant-Governor; that the Secretary of State refused to
deliver said returns to the Petitioner, and still refuses; and has
unlawfully delivered said returns to one E. W. M. Mackey, as-
suming to he Speaker of a body claiming to be the House of
Representatives, which is not legally organized ; and Petitioner
prays that a Writ of Mandamus issue, directed to H. E. Hayne,
as Secretary of State, and E. W. M. Mackey, commanding and
enjoining them forthwith to deliver to the Petitioner, as Speaker
of the House of Representatives, the returns of the Managers of
Election, transmitted to him upon the election, and for further or
other relief. On the suggestion, the Court granted an order
48
that H. E. Hayne, Secretary of State, and E. W. M. Mackey,
show cause on the fourth of December instant, why the
prayer and suggestion of the petition should not be granted. The
pleadings, evidence, and arguments of the Counsel having been
submitted to the Court, we now proceed to deliver our decision
and judgment.
As to the jurisdiction of the Court, the exercise of which has
been objected to on the part of the Respondents, the Court feel
no doubt at all of its power under the Constitution. Section
4, of Article IV., provides that "the Supreme Court shall have
appellate jurisdiction only in cases of Chancery, and shall
constitute a Court for the correction of errors at law, under such
regulations as the General Assembly may prescribe : Provided,
the said Court shall always have power to issue Writs of Injunction.
Mandamus, Quo Warranto, Habeas Corpus, and such other
original and remedial writs as may be necessary to give it a
general supervisory control over all other Courts in this State."
Now according to the view of the learned Counsel for the
Respondents, the power of the Court as to those Writs, under
§ 4, Article IV., of the Constitution, is limited to our supervi-
sion over all other Courts of this State.
The mere reading of the Section is enough, I trust, to convince
the learned Counsel that his interpretation of the Section is not
well founded. The Writ of Injunction is used, not to control
other Courts, but acts directly on parties, and no form of
Injunction could issue to a Court to enjoin the proceedings of one
of inferior jurisdiction. The Writ of Mandamus stands upon a
different footing. It may be addressed to another Court, may
control the exercise of an assumed power by another Court, and
in that view may be said to supervise. Bnt Quo Warranto is
never used in the supervision of another Court. It is directly an
issue between two persons claiming the same office ; so too the
Writ of Habeas Corpus mentioned in the Section ; how can that
Writ issue to supervise Courts of inferior jurisdiction ? It is the
great writ of privilege interposing the shield of the law over the
person of the prisoner. This great writ of right and of liberty
acts only upon the person, and never upon a Court. To show
49
that the view which we entertain of the said Section is in con-
sistency with the end designed hv the framers of the Constitution,
we may refer to the fact that the exercise of this power was to con-
tinue as it existed at common law at the time of the adoption of
that instrument. They went further, and gave to this Court
power to issue " such other original and remedial Writs as may
be necessary to give it general supervisory control,"—for in-
stance, the writ of certiorari, and every other writ which was
requisite to bring into this Court the proceedings of an inferior
tribunal, that its action might be supervised by this Court. So
much for the objection in that particular.
"It is then alleged that this Court has no jurisdiction over
Hayne, one of the Executive officers of the State, because, ac-
cording to the limitations of the Constitution, the powers of the
government are vested in three distinct bodies ; neither one of
which can exercise any control over the other.
" That may be conceded to the fullest extent, and yet what
would become of the rights of the citizen, vested in him not only
by the common law but by Statute, if there was no control over
the Executive department of the government ? The Treasurer is
a part of the Executive department, and yet more than one case
may be found where this Court has interposed to compel him to
perform duties specifically required of him ; and so of other
officers. It is not an encroachment upon the duties of their
particular departments. This Court does not undertake to say
to them, that we are to perform the duties assigned by law to
you. It does no more than say, you must perform the specific
duties assigned to you by law. where you have not the privilege
of exercising discretion. That is all ; the Mandamus could not
compel the Governor to issue a pardon ; that would be an en-
croachment on his prerogative. But to say that the Judicial
department of the government, where a citizen avers that his
rights have been infringed by an Executive officer, could not
interpose, as for example, when the Legislature had appropriated
a certain sum of money to be paid to him, and the Treasurer
refuses, is startling. Where would the Judiciary be? where
would the other departments of the government he ? The Ju-
7
50
diciary would sink into mere insignificance. The other depart-
ments might increase and wield their powers to such extent that
the liberties of the people might be entirely destroyed. T^he
Court has previously decided this point in the same way. It
was only out of respect to the learned Counsel from abroad that
it permitted it to be again argued.
"The question is, whether Mr. Wallace has established in this
Court his right, by reasons of his holding under the Constitution
the office of Speaker of the House of Representatives, to the
possession of the returns of the election for Governor and
Lieutenant Governor, filed with the Secretary of State.
" We do not feel it incumbent upon us either to inquire or deter-
mine if Mr. Mackey, one of the Respondents in this case, is the
Speaker of a legally constituted House of Representatives of
the State of South Carolina. We do not consider that inquiry
necessary to the judgment demanded in this case. The Court
holds that Mr. Wallace is the Speaker of a legally constituted
House of Representatives of South Carolina, therefore has such
a status here as authorises the proceeding on his behalf. It has
been made to appear by evidence that of the constitutional num-
ber. one hundred and twenty-four, of which the House shall con-
sist, sixty-three members were in their seats when Mr. Wallace
was elected. The constitutional requisition having been thus
complied with, there was present the necessary "quorum to do
business." This is no new question—it was so decided by this
Court in a day when everything was calm and serene, when the
political atmosphere was pure, when there was no excitement in
the country, as unfortunately prevails now. In the case of Mor-
ton, Bliss & Co. against the Comptroller General, reported in 4th
South Carolina Reports, it was held that to constitute a House of
Representatives, there must be a majority of the members which
the Constitution requires to make a House, and that is one hun-
dred and twenty-four, in the proportion of members to the respec-
tive Counties, as fixed by law.
"Now it is contended that there was not sufficient evidence of
the right to membership on the part of the gentlemen constituting
the number of sixty-three to entitle them to the floor in the or-
51
ganization of the House. As we understand it from the proof in
the case, and it is conceded by the Respondents, that all the
members had certificates from the Secretary of State except eight,
and the eligibility of those eight was established by the pro-
ceedings in this Court.
" No matter what was the character of the certificates the}' had,
the return of the Board of State Canvassers to this Court, show-
ing that they had received the greatest number of votes in their
particular counties, entitled them to access to the floor for the
purpose of organization. The return made to this Court by the
Board of State Canvassers shows the name of every candidate in
every County, and the number of votes he received, and there-
fore the names of those who received the greatest number in their
respective Counties. The Court then required that the Board
of State Canvassers should make a report in conformity to that
return. Instead of performing that duty, they adjourned sine
die ; possibly with the view in that way of avoiding the perform-
ance of the duty plainly imposed upon them by the law, but more
especially brought to their notice by the order of the highest
Court of the State of South Carolina.
"The law cannot be avoided in that way. We must at least
preserve our civilization and maintain the due enforcement of the
laws, according to the judgment to those upon whom the Constitu-
tion has imposed the duty and responsibility of interpreting them.
" In every case there will be difference of opinion, but we think
that when the political horizon is clearer than unfortunately it
now is, the whole people of South Carolina will unite in saying
that the law must be obeyed. Peace and prosperity can never
be the reward of the people until every man knows that his first
duty is not only to submit to the laws, but to lend his moral in-
fluence to their proper enforcement.
" So much of the prayer of the Petition as asks for a mandamus
against Mr. Mackey must necessarily be dismissed.
" There cannot be two Speakers of the House of Representatives
in South Carolina, and Mr. Mackey stands in the position, so far
as appears by the testimony and in the view of the Court, as a
private citizen, against whom mandamus cannot issue. In regard
.72
to Hayne, the Court considers that another important question
is involved, and will order a further hearing at some future day.
•'It is therefore ordered and adjudged that the said VV. H.
Wallace is the legal Speaker of the legally constituted House of
Representatives of the State of South Carolina, and as such officer
was and is entitled to the possession of the returns of the election
for Governor and Lieutenant Governor, held on the 7th day of
November, A. D. 1876, which were transmitted to H. E. Hayne,
Secretary of State. But it appearing that the said election re-
turns have been unlawfully delivered by said H. E. Hayne,
Secretary of State, to E. W. M. Mackey, one of the Respondents,
the question is reserved for further argument and consideration,
whether the writ of mandamus should now issue to said H. E.
Hayne, Secretary of State.
"It is further ordered and adjudged that the petition be dis-
missed as to E. W. M. Mackey."
Associate Justice Willard said:
" As this is the case of very great magnitude, it would be
proper to enunciate briefly the propositions upon which I concur
with the action of the Court. The Supreme Court has consti-
tutional jurisdiction in cases of mandamus. Our jurisdiction
is original and general; we have so construed the Constitution
repeatedly without objection to that jurisdiction having been
raised before at this bar, although we repeatedly affirmed that
to be under our jurisdiction. Mandamus issues whenever a
public officer is called upon to perform a ministerial act of a
specific character, and, on demand, has refused its performance.
The question then arises whether the Secretary of State and
E. W. M. Mackey occupy that position. Are the duties they
are called upon to perform ministerial V Are they specific ? Have
they been called upon to perform them ? and have they refused
performance ? And the additional question, whether Mackey
is a public officer. There can be no question as to the character
of the duty of the Secretary of State. He is ordered to do a
specific thing: to deliver certain papers to a certain person
invested with the office of Speaker of the House of Representatives.
53
"That is clearly a ministerial act. We have rightfully defined
a ministerial act to be one proceeding from a duty to do some-
thing which an individual or corporation has a right to demand
should be done. Tlie Speaker of the House of Representatives
has a clear right to demand that the Secretary of State should
transmit to him the papers in question. The Secretary of State
being a public officer, charged with this specific-ministerial duty,
is bound to perform it. And refusing it, he may be compelled
by mandamus. The question which is raised is. Is Wallace
Speaker of the House of Representatives ? It seems that the
body over which he presides had the Constitutional majority,
provided the members from Edgefield and Laurens Counties
were entitled to seats in that body. This is indisputable. I am
satisfied that the provision of the Constitution that the House of
Representatives shall consist of (1-4) one hundred and twenty-
four members, is mandatory, anil the House cannot obtain a
Constitutional organization without having a majority of that
specific number of members participating in the organization.
The question as to whether the members from Edgefield and
Laurens Counties were entitled to seats, was rightly understood
by counsel as depending upon the jurisdiction of this Court in
mandamus. If this Court had power to command the Board of
State Canvassers to declare the election of those members from
Edgefield and Laurens Counties, then we think they are to be
regarded as members of the House of Representatives. We
permitted counsel to argue the question of our jurisdiction, not
because we had any doubt or could conceive of a possible doubt,
but because this is a case of great importance, and the Court
wished to hear everything that could be said upon the subject.
We have no doubt as to our jurisdiction to confine the Board of
State Canvassers within the limits of tjieir proper jurisdiction;
to say what the jurisdiction of that body is. We do not claim,
nor have we ever exercised, nor do we intend to exercise, the
right to control the discretion of any Executive officer or Board
whatever, nor to interfere with their discretion. We determined
that they had a mere ministerial duty to perform as regards
members of the Legislature. The provision of the Constitution
54
making each House the judges of the election returns and quali-
cations of its own members, could leave nothing for the Board
to do but the ministerial duty of certifying the results of the
election as they appeared prima facie; and the Act of the Legisla-
ture itself has paid respect to the Constitution, by withholding in
terms from the Board of State Canvassers such power when it is
lodged in any other body. In the cqse under consideration, it
had been already lodged by the Constitution in the several
houses of the General Assembly. The Court commanded that
specific ministerial act to be performed. After the judgment was
rendered from the Bench, and before the writ of mandamus was
issued, it appears from the proceedings in that case, which are
before us, that the Board undertook to make certain declarations
in violation of their duty, under the judgment of this Court.
Under familiar principles, that action w^s null and void, and
could give no legal foundation to any legal action whatever.
The members of the Legislature Were then in the same position
as if the Board had refused to make any declaration whatever
after having been commanded by this Court; and I presume that
there is no lawyer who will give fair consideration to this matter,
who will doubt, that if after judgment pronounced the Board
had refused to make any declaration whatever, it would have
been competent for the members elected, under the statement of
the Board made to this Court, to take their seats without any
certificate whatever, inasmuch as their action was abortive when
they disobeyed the order of the Court. Technical constructions
are never to be applied in the vital stages of the organization of
such a body. Red tape can never be allowed to tie up the or-
ganic powers of the Government. It would be to attempt to
Carry matters of form proper to the minor transactions of life,
into those great matters which cannot be hampered by such
things. I am fully in accord with the Court that the body
which contains the constitutional number, was the House
over which Wallace presides. The one presided over by Mackey
has no legal status whatever. Mackey is a private citizen, and
is subject to arrest and punishment. The criminal Courts of
the country furnish the mejns of punishment.
55
"As to the Secretary of State, I fully concur in the view that
the question whether mandamus can go to him after he has parted
with the papers, should be fully argued at the Bar."
Associate Justice Wright said:
■' I fully concur with my associates in all that they have said.
1 have just remarked to the Chief Justice' that it was not
necessary for me to say a word, inasmuch as he and my other
associate have better expressed my views than I am competent to
do. The whole point in this case is whether or not five persons
from Edgefield and three from Laurens had a prima facie right to
take their seats and participate in the organization of the Gem
eral Assembly of South Carolina. In looking a moment also at
the statutes under which the State Board of Canvassers are
directed to act, I find the (24) twenty-fourth section, which is
one of the sections which defines their power and duties, reads
thus : " The Board, when thus formed, shall, upon the certified
copies of the statements made by the Board of County Canvas-
sers, proceed to make a statement of the whole number of votes
given at such election, for the various offices, and for each of
them voted for, distinguishing* the several Counties in which
they were given. They shall certify such statement to be cor-
rect, and endorse the same with their proper names." That
was an indispensable duty devolved upon the Board of State
Canvassers. It is evident that they did not perform that duty,
inasmuch as they assumed to throw out two Counties in the
State, and to leave the people in those Counties unrepresented in
the organization of the House of Representatives. Now was there,
or is there, any remedy or redress for the citizens of Edgefield
and Laurens Counties ? This statutes provide that the Board
of County Canvassers shall file certified copies of their state-
ments in the office of the Clerk of the Court for each County ;
also with the Governor, Comptroller-General and Secretary of
State.
" I regard that as a wise provision of the law, for the simple rea-
son, if it can be called simple, that if the Board of State Canvassers
could throw out a County or Counties, and declare that those
56
Counties shall have no representation, that there is a way by which
you can tell who receive"! the highest number of votes. Now, I
presume the object of the Government is, or should be, the pro-
tection and representation of the people. If a body of men
acting as a Board of State Canvassers have a right to throw out
one County and thus defeat its representation, they can throw
out one half or all of the Counties ip the State, and defeat an
entire election. Consequently I take it that those eight men
had a right to participate in the organization of the House of
Representatives. That being the fact, it was impossible for the
other so-called House to have the requisite Constitutional
majority.
"So far as regards the other case, that of Secretary of State, I
fully concur with my associate that it is a very important and
grave question, and should be fully arguqd by counsel. It has
not yet been argued at all."
This judgment of the Supreme Court is conclusive. It is
binding upon every citizen of South Carolina. It is the law, and
governs every Court in the State. There can be no argument
whether the Mackey House was legally constituted, because the
Supreme Court has decided that it has no legal status whatever.
In any point of view, the organization of the Mackey House was
illegal, and every act, deed, matter, or thing attempted to be
done and performed by it was, and is, utterly void.
Without comment it is too clearly seen that this decision is not
obiter dictum, because the decision necessarily involved the ques-
tions which was the House of Representatives and who was
Speaker, as was conceded in the argument by Counsel on both
sides. See Ma'rbury vs. Madison, 1 Cranch.
The decision in the Mandamus as to rights of members of
the Legislature who had received the greatest number of votes,
was the basis and pith of this decision.
The Chamberlain Memorialists, on p. 5, review the decision of
the Supreme Court, and charge—
I. That it counts in the eight members from Edgefield and
Laurens, whom the Board had refused to certify.
57
The Court no where undertook to " count- in" any members.
It simply held that the Board could not •'count out" those two
Counties of the State. The certificate of the Board of Canvass-
ers to the votes cast is the finding of fact, upon which the decision
of the Court as to the rights of the parties and the law of the
case stands.
2. It is charged that thp Court, "having been unable to com-
pel the Board of State Canvassers to decide the election accord-
ing to its own view of their duty and not their view, decides that
its own declaration of the election in Edgefield and Laurens
Counties shall stand, instead of the decision and declaration of
the Board."
If the conflict were between the view of the Supreme Court of
a State and the view of a State Board as to the legal duty of the
latter, we ask, in all cqpscience, which of the two should prevail?
It is not true that " the Court decided that its own declaration of
the election should stand instead of the decision and declaration
of the Board."
On the contrary, the Court decided "that its judgment, based
upon the certificate of the Board of Canvassers as to the actual
result of the election, as shown by the County returns, should
stand instead of the false statement and illegally certified de-
termination of the Board of Canvassers, and be taken by the State
officials as sufficient evidence of the rights, prima facie, of the
persons elected;" and that Wallace was the lawful Speaker of
the lawful House, and its decision is final. Luther vs. Borden,
7 Howard, p. 10.
VIII.
As to the proceedings in Habeas Corpus before Judge
Bond, the preceding extracts from the Record show that the mem-
bers of the refractory Board of State Canvassers were in custody
for contempt in failing to obey the mandate of the highest Court
of the State, expressed in its writ of peremptory mandamus, and
failing and refusing to make return to said writ, and failing to
make return to the Rule served on them, or to show any reason
9
58
why they had not executed the mandate of the Court in a matter
exclusively cognizable by the Judiciary of the State, and with
which the Federal authorities had nothing whatever to do iu the
way of jurisdiction or otherwise. Nor can any color or support
for Judge Bond's action in taking jurisdiction of the case, much
less in discharging the prisoners from custody, be found in the
fact relied on in his opinion, that Sims and the other petitioners
applied in the original petition for a mandamus against the Board
of State Canvassers in the matter of the election for Electors of
President and Vice President, not only because the action of the
Court complained of had no reference whatever to the duties of
the Board in that regard, but because the following order had
been passed prior to granting the order for the issuing of the
writ of mandamus:
"THE STATE OF SOUTH CAROLINA, "1
In the Supreme Court. J
The State Ex rel. R. M. Sims et al.,
VS.
"H. E. Hayne et al., Board of State Canvassers, and H. E. Hayne,
Secretary of State.
MANDAMUS.
"It appearing, from an inspection of the above stated petition
for Mandamus, that the same relates to different classes of officers,
to wit, of Members of the General Assembly, of Electors for
President and Vice President of the United States, of Members
of Congress of the United States, of Circuit Solicitors, of County
officers—and it appearing to the satisfaction of the Court that
there are, or may be shown to be, different provisions or rules of
law applicable to these several classes of officers, and that the
emergency of time may render necessary and proper a priority
in the order in which the Court shall pass upon the questions of
law relating and applicable to these different classes of officers
respectively—
"Ordered, That the petition herein be considered and deter-
59
mined by the Court, as if several separate petitions had been
filed herein, one each in the several above specified different
classes of officers.
"November 21st. 187b. (Signed) F. J. MOSES."
The Order for the writ of Mandamus, the writ of Mandamus,
the Rule on the State Canvassers, and the Order adjudging them
in contempt, all have reference to their duties in regard to the
election of Members of the State Legislature only. The con-
tempt of Court committed by these high officials was of the
grossest nature.
To any one at all acquainted with the partition of Federal and
State powers, or the boundary lines of jurisdiction between
Courts, or the common learning upon the subject of contempts,
it would seem almost insulting to argue for the purpose of demon-
strating that a Judge of the United States Courts had no juris-
diction to revise by habeas corpus this judgment, of contempt
made by the Supreme Court of the State, and could not discharge
those committed under the State lavs for such contempt.
The jurisdiction of the United Suites Courts in such cases is
negatived by an unbroken current of controlling authorities, a
few of the more prominent of which are: Ex parte. Kearney. 7
Wheaton, 38; Tarble's case, 13 Wallace. 407; Ablen.aii v*.
Booth, 21 Howard. 523; ex parte Watkins. 3 Peters, 201; Hurd
on Habeas Corpus. 412. Nor is Judge Bond more happy in his
idea that this controversy may be referred to the Supreme Court
of the United States, for no such appeal lies. Rev. St. U. S.,
page 143.
IX.
Election and Inauguration of Governor and Lieutenant
Governor.
The election returns show that at the election for Governor.
Wade Hampton received 92,201 votes, and D. II. Chamberlain,
his only competitor, received 91,127 votes, making a majority
for Hampton of 1,134 votes; and that at the election for Lieu-
60
tenant Governor. W. D. Simpson received 91,689 votes, and
R. H. Gleaves, his only competitor, received 91,550 votes, mak-
ing a majority of 139 votes for Simpson; and the Constitution
of South Carolina is express that " The person having the high-
est number of votes shall be Governor."
Section 4, Article III., of the Constitution of the State is as
follows:
" Section 4. The returns of every election of Governor shall
be sealed up by the Managers of elections in their respective
counties, and transmitted, by mail, to the seat of government,
directed to the Secretary of State, who shall deliver them to the
Speaker of the House of Representatives at the next ensuing
session of the General Assembly, and a duplicate of said returns
shall be filed with the Clerks of the Courts of said Counties,
whose duty it shall be to forward to the Secretary of State a
certified copy thereof, upon being notified that the returns pre-
viously forwarded by mail have not been received at his office.
It shall be the duty of the Secretary of State, after the expira-
tion of seven days from the day upon which the votes have been
counted, if the returns thereof from any County have not been
received, to notify the Clerk of the Court of said County, and
order a copy of the returns filed in his office to be forwarded
forthwith. The Secretary of State shall deliver the returns to
the Speaker of the House of Representatives at the next ensu-
ing session of the General Assembly; and during the first week
of the session, or a9 soon as the General Assembly shall have
organized by the election of the presiding officers of the two
Houses, the Speaker shall open and publish them in the presence
of both Houses. The person having the highest number of votes
shall be Governor; but if two or more shall be equal, and high-
est in votes, the General Assembly shall, during the same ses-
sion, in the House of Representatives choose one of them Gov-
ernor viva voce. * Contested elections for Governor shall be
determined by the General Assembly in such manner as shall be
prescribed by law."
After the election had been duly held the returns were
duly certified and delivered to the said Hayne, then Secretary of
61
Slate, who, without warrant of law, delivered them to the said
Mackey, illegally claiming to be Speaker of the House of Repre-
scntatives, neither he being Speaker, nor the body electing him,
the minority of 59 all told at the time of its pretended organiza-
tion, being the House of Representatives, as has been adjudged
by the Supreme Court in the decision and opinions of all three
of the Justices hereinbefore set forth. Afterwards, on the 5th
of December, 1876, the said Mackey, in presence of this
illegal, unauthorized, and unorganized assemblage, falsely claim-
ing to be the House of Representatives, and a portion of the Sen-
ators, in the hall of the House of Representatives, the doors thereof
being closed and guarded by officers and soldiers of the United
States army, pretended to open and publish the returns of the elec-
tion for Governor and Lieutenant Governor, but in reality only
opened and published a portion thereof, and did not open and pub-
lish the returns from the Counties of Edgefield and Laurens, in
which Counties Hampton received a majority of 4,27*2 votes over
Chamberlain for Governor, and Simpson received a majority of
4,235 votes over Gleaves for Lieutenant Governor; and thereupon
illegally declared Chamberlain and Gleaves to have received the
greatest number of votes, and to be elected Governor and Lieu-
tenant Governor; and thereafter, on the same day, Chamberlain
and Gleaves, under the same military guard, went through the
pretended ceremony of taking oaths of office; and thereupon pre-
tend to be Governor and Lieutenant Governor of the State.
On the fourteenth of December, 1876, William H. Wallace, the
lawful Speaker of the lawful House of Representatives, after the
House had given the usual and customary notice and invitation
to the Senate, in default of possession of the returns of the
election of Governor and Lieutenant Governor, which were
illegally detained by Hayne and Mackey, opened and published,
in the presence of said House and of a number of Senators who
attended upon said notice and invitation, the duplicates of the
returns which had been filed with the Clerks of the several
Counties, and a certificate by said Secretary of State, Hayne, of
the number of votes cast for Governor; and Hampton and Simp-
son having received the highest numbers of votes, were duly
62
declared duly elected Governor and Lieutenant Governor of the
State, and thereupon on that day took and subscribed the Oaths of
office prescribed by the Constitution, and then and there entered
upon the discharge of the duties of their offices. Nor have either
Chamberlain or Gleaves taken any steps to contest said election
as provided for in the Constitution and by Act of Assembly,
Revised Statutes, page 32, section 28.
The bogus House of Representatives and Senate affected to
pass a Tax Act, and Chamberlain affected to approve it as Gov-
ernor; but his pretended officials for collection of taxes, can
make no collections.
The people of the State, without regard to political or race
complexion, conscious that Hampton has been elected and is
Governor, have voluntarily contributed over one hundred and
twenty thousand dollars, without the imposition of any tax, for the
purpose of supporting the penal and charitable institutions of the
State,—the Penitentiary, Lunatic and Colored Orphan Asylums.
—which the previous administration of Chamberlain had suffered
to be in absolute want, and for furnishing the funds necessary
for the administration of the law.
As long ago as October 4, 1876, Mr. Chamberlain, in a widely
circulated document, over his own signature, in which he con-
fessed his utter inability to administer the government ot the
State, and that his reliance was on military aid, threatened
"action which would inflict great temporary injury upon the
material interests of the State;" and right faithfully has lie acted
as he threatened, shielded and supported in the ruin he has
wrought by the army of the United States. The material
interests of the State have been greatly injured, commerce
languishes, trade scarcely exists, capital is repelled, industry is
paralyzed. The corridors of the Capitol still resound with the
measured tread of the sentinel, and bristling bayonets proclaim
to the favored few who are permitted without molestation to
enter its portals, in language not to be misunderstood, niter
arnia silent leges. In defiance of the Constitution and of
the will of the people lawfully expressed at the ballot box, the
Governor, Lieutenant Governor, and House of Representatives
63
are still excluded from the State House by armed troops of the
Federal Government. Mr. Chamberlain and his pretended
government are supported and upheld by them and by them
alone.
For the reasons set forth, your Memorialists regard it a public
dutv again to apply to the Legislative Department of the Govern-
ment for relief from the interference of the United States military
authorities in the affairs of this State.
WADE HAMPTON, Governor.
WM. D. SIMPSON, Lieutenant Governor.
WM. H. WALLACE,
Speaker House of Representatives.
JAMES CONNER, elected Attorney General.
JOHNSON HAGOOD,
elected Comptroller General.
R. M. SIMS, elected Secretary of State.
S. L. LEAPHART, elected Treasurer.
H. S. THOMPSON.
elected Superintendent of Education.
E. W. MOISE,
elected Adjutant and Inspector General.