F^s-js F 375 J.H9 Copy 1 ^-^^^^^^^:::a-:^'§teJtfe AN APPEAL IN BEHA1.F OF LOUISIANA, ^^' mH of tltc mx\\d ^hk§ HLFILLMKNT OF THE eONSTITUTIONAL GUAKANTY TO UKI! OV A REPUBLICAN FORM OF GOVERNMENT, AS A STATE IN THE UNION. BY HON. RAND£LL HUNT. CoMMiTTKK Rooms, February, US74. Till! following appeal prepared at the request of the Committee of Seventy in New Orleans, is now presented to the Senate of the United States by the Committee as a true expression of the views and feelings of the people of Louisiana. NEW ORLEANS: C'lai'lc & Hofelijie, Priiaters, 9 Baiilc Place 1874. 1'^ Y^ H \ Y^^^ ^c\ AN APPEAL III behalf of Lonlslaiia to the Senate of the United States for the fnlfillnient of the Constitutional guaranty to her of a republican form of government as a State in the Union. Senators ! Representatives of the Sovereign Stales of the Union ! Con- stitutional guardians of their rights and liberties ! Louisiana, wronged and oppressed: temporarily stripped of her sovereign rights as one of the United States of America, and subjected to the rule of a faction, tyrannic- ally set over her by judicial usurpation, supported by the military forces of the United States, appeals to you this day for justice and redress. She appeals to you in the name of a violated constitution — by the ven- eration and gratitude you bear the noble ancestors who established our system of free government — by your love of liberty, and of American republican constitutional institutions — by your pledged faith to defend the Constitution of the United States, and by the duty you owe your posterity to transmit to them unimpaired the blessings of liberty — to restore to her the republican form of government to which, in common with every State in the Union, she is entitled by express guaranty of the Constitution of the United States. Cons. U. S. Art. 4, Sec. 4. The last hope of republican government on the continent — founded upon the right of man to govern himself — to choose his own representa- tives and to be taxed only by them — rests upon your wisdom and patriotism. The eyes of every American are turned upon you. The heart of the nation beats with anxiety for the result of your deliberations and judgment. The Constitution of the United States declares that the United States shall guarantee to every State in this Union a republican form of government. The necessity for that guaranty to secure the peace, safety and liberty of the States, and their very existence in the Union, was so cledr that the clause was unanimously adopted in the convention that framed the Consti- tution. The Federalist, with characteristic vigor and eloquence, with all its powers of logic and appropriate historical illustration, enforces its import- ance and faithful maintenance. Judge Story, in his c(jmmentaries, adopted and published the views of the Federalist, with high commendation, as a part of his work, and with [ 2 ] prophetic warning says : without a guarantee the assistance to be derived from the national government in repelling domestic dangers, which might threaten the existence of the State constitutions, could not be demanded as a right. Usurpation might raise its standard and trample upon the liberties of the people, while the national government could legally do nothing more than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law ; while no succor could be constitutionally afforded by the Union to the friends and supporters of the government. But this is not all. The destruction of the national government itself, or of neighboring states, might result from a successful rebellion in a single State. 3d Story's Comm., p. G79. The power and the duty of the Senate of the United States to maintain the guarantee, and to rescue any State in the Union that may stand in need of its aid, from the thraldom of a faction, is certain and manifest. Surely^ surely the Senate will not stand by unconcerned, while the people of a sovereign State are fraudulently deprived of their true representation in the Senate of the United States. The chief magistrate of the Union can, of himself, have no motive, no desire but the public good. But, surely the President, if mistaken or misled, will not be allowed to strike down the sovereignty of a State by his mere will, or the treacherous advice of partizans, and to constitute a faction a State. Such a power would destroy the character of our government, and convert it into a despotism. A President, while he discharges his duty constitutionally, and acts within the sphere of his just and true authority, is the minister of the law, enti- tled to the respect and support of every good citizen ; but when he tran- scends the law, and uses the power entrusted to him for legal purposes, to the oppression of a State or citizen, he becomes a tyrant and a public enemy. His action cannot affect the duty of Congress to maintain a guaranty which it is bound to maintain by the constitution of the country. The Constitution of the United States declares that the Senate shall be the judge of the election returns and qualifications of its own members and that the Senators from each State shall be chosen by the legislature thereof. Now, two persons present themselves to the Senate and claim to have been duly elected by the legislature of the State of Louisiana, to one and the same seat in the Senate of the United States. They present separate credentials from two separate and different governments, each assuming to be the coqstitutiop^l gijd republican government of Louisiana. [ 3 ] These conflicting claims and credentials necessarily impose upon the Senate the duty to inquire into the true character of the governments, and to decide whether either, and which, if either, of the claimants has been chosen a member of the Senate from the State of Louisiana, by the legislature thereof The Senate has shown its sense of this important duty. On the 17th day of January, 1873, it adopted the following reso- lution : " Resolved^ That the Committee on Privileges and Elections be instructed to inquire and rejiort to the Senate whether there is any existing State Govern- ment in Louisiana, and how and \>j whom it is constituted." And the credentials of the claimants to a seat in the Senate from the State, were also referred to that committee. The committee devoted a long time to the investigation of the subjects thus referred to them, took all the evidence — record and oral — within reach, and submitted an able and elaborate report. They showed the true character and condition of the government of Louisiana at this time — the pressure, grievances, and outrages, under which the people of the State suffer from the unconstitutional and revolu- tionary action of a portion of the federal authorities in setting aside its republican government, and creating and upholding an organized usurpation and tyranny — and the duty of Congress, of the national government, the government of the United States — in this emergency. But the Senate adjourned without action upon the report : and the entire subject is now to be finally disposed of. Senators ! Our system of government is peculiar and complicated. It is original in its character, truly and emphatically our own — x\merican, with- out example or parallel. We have State sovereignties, each exercising legislative, judicial, and executive powers, and all standing on an equal footing ; and we have a general government under which all these States are united, and it is the very beauty of our system, that the federal and the State governments are thus kept distinct ; the peculiar and local inter- ests of the several States are left to the control of the separate States, and the general legislation is given to the general government. The people of each State formed the constitution of the State. The people of the United States ordained and established the Constitution of the United States. The object of the Constitution of the United States was to make the people of the United States one, and to place them under one government in resjard to their common interests and foreign relations and foreign inter- [ ^ ] ests. It was not an amalgamation of the whole people under one govern- ment, and one government only — not an extinguishment of the States, but a union of existing States. The general government is a federative popular representative govern- ment, with all the departments, functions and organs of such a government, but it is still a limited and severely guarded government. It exists under a writtenconstitution with this preamble : " We the people of the United States in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to our- selves and our posterity, do ordain and establish this constitution for the United States of America." The constitution treats the States as States : enumerates the powers granted to the Ignited States and declares the powers not granted reserved to the States and the people. It makes one branch of the legislature of the United States, consist of Senators appointed by the States in their State capacities, and secures an equal voice in the Senate to each State in the Union. It makes its own existence depend upon the existence of the States ; and to perpetuate the latter, guarantees to each State of the Union — ^a republican form of government. These fundamental principles are stated in the words of the constitution and its wisest and ablest expounders. They cannot be disputed. Mr. Jefferson considered the preservation of the States essential to the existence of the national government, and of our liberties. Mr. Hamilton with equal emphasis, declared the existence of the States was absolutely necessary, and that any blow aimed at these members by the national gov- ernment, must give a fatal wound to the head ; and the destruction of the States be at once a fatal suicide. These governments — State and national — rest upon the consent and will of the people — who exercise their political power through representa- tives chosen by the majority — according to fixed constitutional principles. Thus, the House of Representatives of the United States is composed of members chosen every second year, directly and immediately by the people of the several States : and the Senate is composed of two Senators from each State, chosen by the legislature thereof, — but that legislature must consist of members elected by the immediate suffrage of the electors in the State. Stor}', in his Commentaries, says; The equal vote ol' the States iij the [ 5 ] Senate of the United States, is at once a constitutional recognition of the sovereignty reigning in the States, and an instrument for the preservation of it. The mode of choosing the Senators, gives to the State government an essential agency in the formation and preservation of the federal gov- ernment, and forms a necessary link between the two systems. The people of the United States have thought proper not only to limit and restrain their governments, but to limit and restrain themselves by con- stitutional regulations. In every State they have prescribed qualifications for office, and precluded themselves from voting for any one unless he possesses those qualifications. They have prescribed too, the qualifications of voters and shut themselves out of the right to vote, unless they have the qualifications. They thus tie up alike their own hands, and the hands of their agencies ; and neither the officers of the State, nor the whole peo- ple as an aggregate body, are at liberty to take action in opposition to these fundamental laws. Under the Constitution of the United States and the early articles of amendment to it, the right to vote was not placed under the control of the United States. The first article of the Constitution provides that, in the absence of amendments, "the qualifications of the voter are to be such as are prescribed for the most numerous branch of eaich State legislature." The States could, under that provision, change the regulation of the right to vote from time to time ; but it was not in the power of the United States to change any regulation. And so it remains, unless the later amendments of the Constitution confer the power of regulating the franchise on Congress. The thirteenth amendment to the Constitution of the United States, by a grand yet simple declaration, abolished slavery and established the per- sonal freedom of all the human race within the jurisdiction of the govern- ment; the fourteenth amendment, established that all persons of whatever color, white and black, born within the United States, and subject to its jurisdiction, are citizens of the United States, entitled to the privileges and immunities of citizens; and the fifteenth amendment declares that the right of citizens to vote shall not be denied or abridged by the United States, or by any State on account of race, color or previous condition of servitude : but none of these have given Congress any power to regulate the right to vote. The whole subject is still left to the several States, but with this restriction or limitation only, "the right to vote shall not be denied or abridged on account of race, color or previous condition of servitude." [ « ] T'nder the pressure of all the excited feelinir growing out of the war, our statesmen have still believed that the existence of the States, with powers of domestic and local self-government — including the regulation of civil rights — was essential to the perfect working of our complex form of government. Upon the surrender of the confederate forces the condition of Louis- iana offered many attractions and inducements for a settlement within her borders. Nearly all the plantations had been broken up. the planters ruined hy the emancipation of their slaves, and by the devastations, ravages and losses incident to war : and the freedmen, who for the most part had deserted their old places of abode and spread themselves through- out the State, had become discontented, slothful and unwilling to work. Lands accordingly had become very cheap, and the most fertile were within the compass of purchase by the intelligent husbandmen of the other States of the Union. Many individuals of this class, settled in Louisiana, and have become identified with her sons as brethren and fellow-citizens. Moreover, the numerous and varied interests of a community like Louisi- ana in a State of reorganization and reconstruction, political, commercial, manufacturing, proi'essional. and literary, as well as agricultural, have added many worthy and useful men to her population. This class of citizens however exercise but little influence upon the action of the political faction that has obtained controlling power in the State. Flocks of greedy and unprincipled adventurers from the Xorth, the East and the West lighted upon the soil of the South. They were penny- less, shrewd, cunning and audacious, and with sufficient education and knowledge to prosecute schemes and enterprises for selfish and fraudulent aggrandizement. They came for prey and sought it with famishing avidity. A large number of them landed in Louisiana. Their mean appearance and small traveling furniture fixed upon them the name of Carpet-baggers. They brought with them — almost without exception — no wives, no children — those sure pledges for honest industry and the good order of society. Their first and great effort was to ingratiate themselves with the emanci- pated laborers, to woo and to win them to a coalition and party organiza- tion, by hollow professions of philanthropy and feigned sympathy for their condition — past and present, — to excite the cupidity of the agricul- tural portion of them by false promises of land and animals and imple- ments of labor — to hold out to the educated colored men the glittering and attractive prospect of lucrative office, of power and station and social equality — to arouse the prejudices and inflame the passicns of race, and [ ■ ] to fill the colored people with the lust of domiuatiou. In this efibrt they were assisted by a number of perfidious renegades — unnatural children of Louisiana — and unhappily by some deluded and couscieutious persons whose fears for the peace of society and false views of personal interest betrayed them into this coalition. The party organization was effected : and the result of its action, aided by the machinations of official corrup- tion — federal and state — backed by the military power of the Union is, this day, manifested in the control of a dynasty of usurpers and tyrants : in the general demoralization of the people, the loss of confidence in the courts, assults upon the press, unjust and oppressive laws enforced with assumed boldness of imperial despotism — sending armed troops into our parishes, to the terror of women and children, the dishonor of their homes, and the utter prostration of the liberties and personal security of the citizens. There is no republican government in Louisiana. The principle that the people are to choose their own rulers and to be taxed only by repre- sentatives elected by themselves is trodden under foot. They are over- burdened with illegal taxation and exactions which amount to a confiscation of their property, and the despotism under which they live, is the more odious as it falsely assumes the form of republicanism. A general election was held in Louisiana, on the 4th day of November. 1872, for a Grovernor, a Lieutenant Governor, member.- of the general assembly, and other State and federal officers. Wm. Pitt Kellogg and C. C. Antoine were candidates for the office of Governor and Lieutenant Governor, and were opposed by John McEnery. and D. B. Penn. The election was one of great importance. The canvass had been warm and excited ; and the passions and interests of factions and partizans were stimulated to the highest deo;ree. Returns of the election were made in pursuance of a statute of the State, to a canvassing or returning board, composed of the Governor of the State, the Lieutenant Governor, the Secretary of State, and John Lynch, and T. C. Anderson — the returns were sent under seal to the Gov- ernor, to be opened in the presence of the board. The board met and it was resolved that Pinchback, the Lieutenant Gov- ernor, and Anderson who were candidates for office at the election, were therefore disqualified to act as members of the board. George E. Bovee. Secretary of State, had been removed from office some months previous, on a charge of corruption, by the Governor, who appointed F. J. Herron [ 8 ] in his stead : and the legality of the removal and appointment was in con- test before the State courts. The Grovernor however became distrustful of Herron, removed him in his turn from the place of Secretary of State and appointed J. Wharton to fill the office and so to act as a member of the board. He had learned there was a plot between Herron and Lynch to falsify the election returns and defeat the will of the people, and that Herron had privately ordered a dupli- cate of the seal of State to be engraved, with the hope to preserve in his own hands the insignia of office in the event of his removal. Wharton presented his commission of Secretary of State and took his seat at the board with the Governor, the President of the board, and Lynch the only other member. The Governor and Wharton then, in the presence of Lynch proceeded to elect Hatch and DaPonte to fill the vacan- cies occasioned by the withdrawal of Pinchback and Anderson : And Lynch and Herron afterwards assuming to be the board, elected Longstreet and Hawkins to fill the same vacancies. Thus there were two bodies — each assuming to be the election returning board : One board was composed of the Governor of the State, by statute President of the returning board ; of Wharton the Secretary of State, and virtute officii, a member ; of Lynch another member : and of their appointees. The Governor had exclusive possession of all the election returns, documents, statements, etc., and of everything necessary to ascertain the result and laid them before this board exclusively, which proceeded to canvass and compile them. The other board consisted of Lynch ; of Herron, who assumed to be a member by virtue of the office, of Secretary of State, which he did not hold ; and of their appointees. The Supreme Court^of Louisiana, decided in May, 1872, that Herron was not the Secretary of State ; and in Decem- lier following that he was an intruder into the office — an arbitrary violator of the legal and constitutional rights of the true Secretary. It necessarily follows that he could not have been a member of the returning board virtute officii : and so the Lynch board was clearly illegal — and quite prop- (?rly without any returns or other matters on which to act. It was generally believed and soon became apparent, that Kellogg and Antoine had not been elected. The vote polled in the State was very large — exceeding by twenty thousand any before cast. The election was (juict, orderly, and undisturbed by any tumult. McEnery received a majority of nearly ten thousand votes over Kellogg for Governor, and Penn received a majority of fifteen thousand over Antoine for Lieuten- ant Governor. [ 9 ] When this result was established beyond doubt — but before the board completed the canvass and compilation of the election returns laid before it by the Grovernor of the State ; — Kellogg, who had been defeated and rejected by the people of Louisiana, resorted to the party scheme and action — secretly and fraudulently devised and prepared — to obtain, if need be, by guile or force, possession of the government of the State, and to make himself the chief magistrate and ruler over that very people: And this could only be effected through the countenance and aid of the federal power and authorities. The exigencies of the case, the pressure of time, the spirit of liberty, and the regard for the constitution in Congress, rendered helpless any appeal to the legislative department of the Union. The President, sworn to preserve, protect, and defend the constitution of the country, cut off all hope of immediate and direct action by the executive for the unholy purpose. The only resort left, was to the judiciary. True, that depart- ment had hitherto been the bulwark of American liberty and constitutional government, administering justice, crushing usurpation, upholding the rights of the states, and securing domestic tranquility. But Judges, like all other men, are imperfecta — subject to the influence of passion and sur- rounding circumstances. The History of England and of our country points out several who have wrested the law, disregarded right and liberty, and perverted judgment. Vanity, arrogance, bitter party spirit, the tyrannical aud corrupt exercise of power, the adulation of flatterers and favorites have sometimes poisoned the administration of justice at its very source. On the IGth day of November, 1872, Kellogg went into the Circuit Court of the United States for the District cf Louisiana, and commenced a suit by filing a bill in chancery against the Grovernor of the State, the Secretary of State, Wharton, and Hatch and DaPonte, members of the canvassing board; against McEnery, his late competitor at the election, and the publishers of the official journal of the State — all citizens of Louisiana. He averred, that he had been elected Grovernor of the State ; that Warmoth had used and abused his powers to defeat him ; that he, Kellogg, believed that ten thousand votes in his favor had been excluded, though offered by ])ersons entitled to vote, because of their color and previous condition of servitude ; that the returning board composed of the Governor, (Warmoth,) of Wharton, Hatch, and DaPonte, was not a legal board, and had not pro perly counted the votes : and that Lynch, Hawkins, Longstreet, and Herron constituted the only true and lawful returning election board of Louisiana; that he was apprehensive that the votes received in his favor would bs [ 10 ] fraudulently dealt with, mutilated and altered by the illegal board so as falsely to make it appear that he had been defeated and McEnery had been elected ; that the evidence of his own election would be destroyed, and he would be deprived of the necessary evidence to maintain his title to the office of Grovernor, to which he had been elected, in any suit which he might be obliged to bring to recover the office. He therefore prayed for injunctions against defendants, and orders for the preservation of the evidence which he might perchance require to use in a suit which he might bring under the act of May, 1870. The Circuit Court of the United States is a court of limited jurisdiction. It has no jurisdiction of a suit of a citizen of a State against the State. It has no jurisdiction of a suit or controversy between citizens of the same State, unless the case arises directly under the constitution and laws of the United States, and jurisdiction is given by an act of Congress. The suit which the act of May, 1870, authorized to be maintained in a Circuit Court of the United States, is simply a suit at law between two parties for an office, of which he who brings the action has been illegally and unjustly deprived, by reason solely of the denial to any citizens of the right to vote on account of race, color or previous condition of servitude. The words of the law are, " such person may bring any appropriate suit or proceeding to recover possession of such office. The title then to the office, and to its possession and benefit, must exist, or the suit cannot be maintained. It appears from the bill of Kellogg that the result of the election had not been declared by either boai'd, and that there was no adverse possession of the office of Governor which plaintiff claimed he might thereafter be entitled to hold. The Governor elected in November cannot, under the law of the State, be inaugurated until January after. And Gov. Warmoth was then in office, and entitled to hold the office until January, 1873. We pass by the question whether this bill on its faee presented a case within the jurisdiction of the court, and contained the material and neces- sary averments for the preservation of evidence to enable Kellogg to prose- cute the suit at law, which he fancied that he might at some future time be induced to institute. The Constitution of the State of Louisiana provides. Art. 52 : No member of Congress, or any person holding office under the United States govern- ment, shall be eligible to the office of Governor or Lieutenant Governor." The article admits of no doubt. The language is clear and susceptible only of one interpretation. It is not that a member of Congnsss shall not hold [ 11 ] the office of Governor while he is a member of Congress ; but that he shall not, while a member of Congress be eligihle to the office of governor. Eligible, means capable of being chosen, qualified to be elected. The people of this State thought proper in their fundamental law to limit their own power of choosing a man to be Governor, and disqualified a member of Con- gress from being chosen for that office. They could not choose or elect a man not "eligible" — that is not capable of being elected. The danger which they intended to guard against was, the influence and patronage of the National or Federal government in the State election. Now, Kellogg was a member of Congress, a Senator of the United States at the time he claims he was elected Governor. If he was not "eligible" the votes given to him were cast away. They were ineffectual and unconstitu- tional. If the votes, when given, were ineffectual because not given for a qualified candidate, it was impossible for them to become effectual to elect him to office. Kellogg therefore had no ground on which to stand in court. Judge Durell was presiding in the Cii'cuit Court. He said : " The reason of the thing seems to favor his, Kellogg's eligibility," the object of the pro- vision of the Constitution being to prevent a man serving two masters and having a divided allegiance. But in 15th Cal. R. the Supreme Court of that date, consisting of Ch. J., S. J. Field, now one of the judges of the Supreme Court of the United States, and Justices Baldwin and Coke, decided : " The plain meaning of the words quoted (similar to those in our State Constitution ) is the opposite of this construction, and therefore the court needed not and would not go into curious speculations of the policy of the provision, of which it may have been a part, to prevent the employment of Federal patronage to effect the State elections. Upon the submission of Kellogg's bill, the court issued an exparte order enjoining and restraining the defendants from considering or canvassing any statement or return relative to the election, except in the presence of the Lynch board : and from permitting any other persons whatsoever to act as the returning officers or constituting a board ; — enjoining McEnery from setting up any claim to the office of Governor by virtue of any evidence of election furnished by the defendant Warmoth and the other defendants, members of the board, and restraining and enjoining the official journal of the State from publishing any statement relating to the election made by the defendants, until the further order of the court. This restraining order was served by the marshal on the 17th November, 1872, two days after, namely, on the 19th of November. Kellogg filed an affidavit, in which he charged that the defendants had acted and were acting [ 12 ] in contempt of the order of Judge Durell. A rule wtis granted against them to show cause, and the matter was slowly proceeding when the Gov- ernor of the State officially approved an act of the legislature of November 20th, 1872, which abolished both the Warmoth and the Lynch boards, and repealed all laws previously in force in regard to a canvassing election board of this State. Warmoth then, as Governor sued out, on the od December, from the District Court of this State an injunction restraining the Lynch board from acting, upon the ground that the act of November 20th had abolished that board. On the same day he appointed a board differently constituted and organized under the new law ; and this new board entered upon the dis- charge of its duty and made a canvass of the election returns, statements, votes, etc., submitted to it by the Governor, and found and declared McEnery elected Governor, and Penn Lieutenant Governor, and declared by their names the individuals who had been elected members of the Legis- lature, and other State officers. The Governor, on the 4th of December, 1872, issued his proclamation promulgating the result, and the returns of the board as compiled from the official returns of commissioners of election and supervisors of registration on file in the executive department of the State. In the meantime the order in the Kellogg case of the 16th of November was discussed in the Circuit Court United States and was held under advise- ment until the 6th day of December. The legislature of the State had been called by the Governor to assemble December 9th, in the capitol at New Orleans. The State government was in possession of its State House, archives and records, and it was apparent that the legislature, composed of members proclaimed by Gov. Warmoth to be elected, would be regularly and peacefully organized on that day, and that McEuery would be inaug- urated Governor in due course of time, unless some new obstruction should intervene. The Judge of the Circuit Court of the United States who had seen the proclamation of Gov. Warmoth, retired to his chamber on the 5th Decem- ber, brooding over in his mind the deep laid schemes and factious purposes of Kellogg and his party ; the Marshal of the Court, the U. S. District Attorney, and one of Kellogg's Attorneys were sent for and joined him. There at midnight — without any previous petition or motion in Court — he dictated and signed an order in the following terms : "It is hereby ordered, That the Marshal of the United States for the District of Louisiana, shall forthwith take possession of the building known as the Mechanics" Institute, and occupied as a State House for the assembling of the Legislature therein, [ 13 ] in the City of New Orleans; and hold the same subject to the further order of this court ; " and meanwhile to prevent all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and returns made by said returning officers in contempt and vio- lation of said restraining order. " But the Marshal is directed to allow the ingress and egress to and from the public officers in said building of persons entitled to the same."' E. H. DURELL. The committee of the Senate in their report declare : It is impossible to conceive of a more irregular, illegal, and every way inexcusable act on the part of a judge. Conceding the power of the Court to make such an order, the judge out of Courts had no more authority to make it than had the marshal. It has not even the form of judicial process. It was not sealed ; nor was it signed by the clerk ; and it had no more legal effect than an order issued by any private citizen. The order was delivered forthwith to the United States Marshal wlu), on receiving it, without a moment's delay, called to his aid and obtained a detachment of United States troops to act as a posse comitatus, to force it. Accompanied by them, and acting under this illegal order, and without any process of Court, Marshal Packard, in a time of profound peace and tranquillity marched to the Capitol, and before the dawn of day, seized and took possession of it. Captain Jackson of the United States Army, testified that he took possession of the State House on the morning of the 6th, with instructions to take and to hold it under the direction of the United States Marshal — that he posted two soldiers at the entrance door, who guarded it with crossed bayonets, and suffered no one to enter except by permission of the Marshal, and that the troops occupied it for more than six weeks to carry out Judge Durell's Orders, and protect the mem- bers proclaimed elected by Gov. Warmoth from assembling and organizing there. The evidence taken by the Senate Committee on privileges and elections at the last session, affords strong persuasive proof that a scheme to over- throw the lawful government of the State with the aid of the military power of the Federal government was prepared in anticipation of the order of Judge Durell. On the 27th November, 1872, Kellogg wrote from New Orleans a long letter to the Attorney General of the United States, in which he said among other things : " the Supreme Court of the State is known to ai/inpafhlzc toi'th IIS and incidentally passed upon the legality of o///- returning board.'" [ 1-4 ] * * Should the United States Circuit Court issue its mandate in aid of what loe helieve to be the right, our "returning board " will show the republican State ticket elected, and a republican majority in the legislature. * * I respectfully suggest that General Emory icho sympathizes ivitli the repuhlican jyarty here, be instructed to comply with any requisition that the United States Courts may make upon him in support of its mandates. * * In conclusion, let me say, that should the United States hold with //.S-, and if I can count on the co-operation and sympathy of the federal government, the State may he saved to the repuhlican party Jor the future, etc.. There is no direct answer to this letter in the evidence. But on the 3d December, the attorney general telegraphed from the department of justice to S. B. Packard, United States Marshal ; you are to enforce the decrees and mandates of the United States Courts no matter by whom resisted, and General Emory will furnish you with all necessary troops for that purpose. On the 6th of December, Casey, Collector of the Customs at New Orleans, telegraphed to President Grant : " Marshal Packard took possession of State^House this morning, at an early hour, with military posse, in obedience to a mandate of the Circuit Court, to prevent illegal assemblage of persons in disguise of authority of Warmoth's Return- ing Board, in violation of injunction of Circuit Court. Decree of Court just ren- dered declares Warmoth's Returning Board illegal, and orders the returns of the election to be forthwith ])laced before the legal board. This board will proba- bly soon declare the result of the election of officers of State and Legislature, which will meet in iState House with protection of Court. The decree was sH-eepiny in its provisions, and if enforced will save the Republican majority and give Louisiana a Republican Leyislature and State government.'^ And on the same day the Marshal telegraphed to Attorney General Williams : "Returning Board, provided by election law of 1870, under which the election was held, and which the United States sanctions, promulgated in the official journal this morning, the official result of the election for the Legislature. The House stands 11 Republicans and 32 Democrats ; the Senate, 28 Republicans and 8 Democrats." Prompt and strong as these party communications and acts had been, there remained something to be done to complete and ensure success. The leg- islature was to assemble in extra session on the 9th of December. It was necessary to organize it as a Republican body — a Republican Senate, and a Republican House of Representatives. This was to be effected by inau- gurating as members of it the defeated persons whom the " Lynch returning board," however, had announced to be elected ; and C. C. Antoine was used as the instrument to accomplish it. [ 15 ] Antoine, the candidate for Lieutenant Governor, and defeated by Penn. held the office of United States Collector of the Customs at Shreveport at the time of the election, and was therefore ineligible under the express disqualifications in the State Constitution. Following the precedent set by Kellogg, he filed his bill in Chancery in the United States Circuit Court for the District of Louisiana , and averring that he had been elected Lieu- tenant Governor of Louisiana in November, made substantially similar allegations, and prayed for injunctions and similar orders to those in the Kellogg case. The ex -parte order made by Judge Durell in his case was, however, more comprehensive. It enjoined severally and respectively the individuals proclaimed elected by the Governor, from claiming or exer- cising any right as members of the legislature, unless their names were on the list of members returned by the Lynch Board. It controlled and supervised the organization of the legislature ; it excluded the members certified by the board appointed under the act of November 2()th, and pro- claimed by the Governor elected; and it compelled the admission and seating of the members returned and certified by the Lynch board, and placed on its list. It thus set aside the constitutional and republican gov- ernment of the State, and appointed a legislature for Louisiana. The Marshal, who had seized the capitol, still held possession of it on the 9th of December — the army of the United States upholding him, and occupy- ing it. The general assembly was to convene that day ; the ingress and egress of persons to the State House continued to be regulated according to the order of the judge. The persons declared to be members by the returning board which the United States Court sustained, entered the State House and organized themselves as a legislature. Pinchback went into the Senate thus constituted and took the presidency. His office of Senator had expired on the 4th of November and his succes- sor had been eleeted. But he had been the president of the preceding Senate, and it was deemed necessary for the Kellogg faction that he should continue to act as such, and so claim to be Lieutenant Governor of the State, and incase of a vacancy, (predetermined) in the office of Governor. the acting Governor of Louisiana. The United States postmaster of New Orleans was elected speaker of the House of Representatives. The House immediately voted an impeachment of the Governor, and Pinchback assumed the office of Governor of the State. The proceedings of the Lynch board in making a list of j)ersons to be [ 16 ] recognized as members of the Legislature are described in the report of the Senate committee : On the 6th of December, 1872, the Lynch Board — Bovee,(who was then acting as Secretary of State in place of Herron), Lynch, Longstreet and Hawkins — pre- tended to have canvassed the returns of the election, and certified to the Secre- tary ot State that Kellogg had been elected Governor; Antoine Lieutenant Gov- ernor ; Clinton, Auditor ; Field, Attornej' General ; Brown, Superintendent of Education, aud Deslondes, Secretary of State, and also, certified a list of persons whom they had determined to be elected to the Legislature. There is nothing in all the comedy of blunders and frauds under consideration more indefensible than the pretended canvass of this board. The following are some of the objections to the validity of their proceedings : "1. The board had been abolished by the act of November 20th. ''2. The board was under valid and existing injunctions restraining it from acting at all ; and an injunction in the Armistead case restaiuing it from mak- ing any canvass not bused upon otficial returns of the election. "3. Conceding the board was in existence, and had full authority to canvass the returns, it had no returns to canvass. "The returns from the parishes had been made under the law of ISVO, to the Governor, and not one was before the Lynch Board." "It was testified before your committee by Mr. Bovee himself, who participated in this canvass by the Lynch board, that they Were determined to have a Repub- lican Legislature, and made their canvass to that end. The testimony abun- dantly establishes ih^ fraudulent character of their canvass. In some cases they had what were supposed to be copies of the original returns ; in other cases they had nothing but newspaper statements ; and in other cases where they had nothing whatever to act upon, they made an estimate based upon their knowledge ot the political complexion of the parish of what the vote ought to have been They also counted a large number of affidavits purporting to be sworn by voters who had been wrongfully denied registration, or the right to vote, many of which aflidavits they must have knoicn to he forgeries. It was testified by one witness that he forged over a thousand affidavits, and delivered them to the Lynch board while it was in session. It is quite unnecessary to waste time in considering this part of the case ; for no person can examine the te-^timony ever so cursorily without seeing that this pretended canvass HAD no semblanck of integrity." On the Dth December the United States Marshal despatched these among other telegrams to Attorney G-eneral Williams in Washington : 1. Returning board has promulgated in official journal, this nuirning, Kt'Uoggs majority, ISSOl. 2. Grovernor Warmoth has been impeached by vote of 58 to 6. ;->. Senate, by a vote of 17 to 5 have resolved themselves into a high court of impeachment. Lieut. Gov. Pinchback being now Governor. 4. Lieut. Gov. Pinchback qualified and took possession of Governor's [ 1^ ] office to-night; Senate organized as high court of impeachment. Chief Justice Ludeling presiding. On the same day, Pinchback, and Lowell, Speaker of the House, jointly telegraphed to President Grant, a resolution of the legislature requesting him to afford the protection guaranteed each State by the Constitution of the United States, when threatened by domestic violence. And Pinch- back telegraphed separately to the President: "Having taken the oath of office, and being in possession of the gubernatorial office, I urge the neces- sity of a favorable consideration of the resolution requesting protection, and of necessary orders to General Emory as a necessary measure of precaution. On the 11th December, 1872, Pinchback telegraphed Attorney General Williams: "May I suggest that the commanding general be authorized to furnish troops upon my requisition for the protection of, the legislature and the gubernatorial office. The moral effect woiild ))e great, and in my judgment tend greatly to allay any trouble likely to grow out of the recent inflammatory proclamation of Warmoth. I beg you to believe that T will act in all things with discretion." And W. P. Kellogg telegraphed : "If the President in some way indicates recognition of Gov. Pinchback and legislature, it would settle everything." And James F. Casey sent two telegrams to the President: 1. "Parties are making desperate efforts to array the people against us ; old citizens are dragooned into opposition ; pressure is hourly growing; our membei's are poor, adversaries are rich, and offers are made difficult for them to with- stand. There is danger that thoy will break our quorum. The delay in placing troops at disposal of Gov. Pinchback, in accordance with joint res- olution, is disheartening our friends, and cheering our enemies. If requisi- tion of legislature is complied with, all difficulty will be dissipated, the party saved, and the tide turned in our favor. The real underlying senti- ment is with us, if it can be encouraged." 2. "Important that you immediately recognize Pinchback's legislature in some manner ; either by instructing General Emory to comply with any requisition by Gov. Pinchback under resolution of the legislature or other- wise. This will quiet matters much. I earnestly urge this and ask a reply. On the 12th December, Casey telegraphs the President again: "The condition of affairs is this: The United States Circuit Court has decided which is the legal board of canvassers. Upon the basis of that decision a leg- islature has been organized in strict conformity with the laws of the State [ 18 ] Warmoth impeached, and thus Pinchback, as provided by the constitution , became Acting Governor. "The Chief Justice of the Supreme Court organized the Senate into a Court of Impeachment, and Associate Justice Talliaferro administered oath to Governor Pinchback. "The legislature, fully organized, has proceeded in regular business since Monday. "Notwithstanding this, Warmoth has organized a pretended legislature, and it IS proceeding with pretended legislation. A conHict between these two organizations may at anytime occur. A conflict may occur at any hour, and in my opinion there is ne safety for the legal government without the federal troops are given in compliance with the requisition of the legislature. " The Supreme Court is known to he in sympathy with the Republican State government. If a decided recognition of Governor Pinchback and the legal legislature were made, in my judgment it would settle the whole matter. Gen- eral Longstreet has been appointed by Pinchback as Adjutant General of State Militia." In answer to these urgent communications the Attorney Greneral of the United States sent this telegram : Department of Justice, December 12, 1872. Acting Governor Pinchhack, New Orleans, Louisiana : Let it be understood that you are recognized by the President as the lawful executive of Louisiana, and that the body assembled at Mechanics' Institute is the lawful Legislature of the State ; and it is suggested that you make procla- mation to that eflFect, and also that all necessary assistance will he given lo you and the Legislature herein recognized to protect the State from disorder and violence. GEO. H. WILLIAMS, Attorney General. The friends of the legitimate government and people of Louisiana appealed to the President of the United States, and asked to be heard be- fore the State government should be subverted and a usurping executive and legislature should be forced upon them. On the 11th of December, Governor Warmoth telegraphed to the President : Under an order from the judge of the U. S. court, investing Longstreet, Hawkins, and others, with the powers and duties of returning officers under State election law, those persons have promulgated results based upon no returns whatever. They have constructed a pretended general assembly, composeil mainly of candidates defeated at the election ; and those candidates protected by United States military forces have taken possession of the State-house, and have organized a pretended legislature, which, to-day, has passed pretended arti- cles of impeachment against the governor ; in pursuance of which, the per- son claiming to be a lieutenant-governor, but whose term had expired, pro- [ 19 ] claimed himself acting governor, broke into the executive office under the protection of United States soldiers, and took possession of the archives. In the meantime the general assembly has met at the city hall, and organ- ized for business with sixty members in the house and twenty-one in the senate, being more than a quorum of both bodies. I ask and believe that no violent action be taken, and no force used by the government, at least tintil the supreme court shall have passed final judgment on the case. A full statement of the facts will be laid before you and the Congress in a few days. Ou the 12th December McEnery telegraphed to the President claiming to be governor-elect of this State, I beg you, in the name of all justice, to suspend recognition of either of the dual governments now in operation here, until there can be laid before you all facts, on both sides, touching legitimacy of either government. The people denying the legitimacy of Pinchback government and its legislature, simply ask to be heard, through committee of many of our best citizens on eve of departure for Washing- ton, before you recognize the one or the other of said governments. I do not believe we will be condemned before we are fully heard. And the chairman of a committee of one hundred citizens of New Orleans appointed at a mass meeting of the people earnestly requested the President to delay executive action until the arrival and hearing of the committee who were about to leave New Orleans for Washington, to lay before him and the Congress the facts of the political difl&culties existing in this State. The following was the only reply to these respectful appeals : Department op .Justice, Decembe r 13, 1882. Hon. John McEnery, New Orleans : Your visit with a hundred citizens will be unavailing so far as the President is concerned. His decision is made and will not be changed, and the sooner it is acquiesced in, the sooner good order and peace will be restored. GEO. H. WILLIAMS, Attorney General. Next day, the 14th December, B. D. Townsend, United States Adju- tant General telegraphed Gen. Emory, in New Orleans : "You may use all necessary force to preserve the peace, and will recognize the authority of Gov. Pinchback." The proceedings of the United States court — its mandates, orders, in- junctions and restrictions — the communications between Kellogg, United States Senator, and suppliant to the federal authorities to be placed in the office of Governor of this State ; of Casey, United States collector of the Customs in New Orleans ; of Marshal Packard, and of Pinchback usurping the Governorship of the State — on the one side — and the executive depart- [ 20 ] ment of the United States on the other, chiefly through Attorney Gren- eral Williams and the orders to military officers, are detailed in the report of the Senate committee of the last year and its accompanying documents. The committee reported : The saddest chapter in this melancholy busi- ness was the interference of federal authorities with the afiairs of Louisiana. Viewed in any light in which your Committee can consider them, the order and injunctions made and granted by Judge Durell in this case (Kellogg case,) are most reprehensible, erroneous in point of law, and are wholly void for want of jurisdiction ; and your committee must express sorrow that a judge of the United States court should have proceeded in such flagrant disregard of his duty, and have so overstepped the limits of federal jurisdiction." It is impossible not to see that the bill of Antoine was filed, and the restraining order thereon was issued for the sole purpose of accomplishing what no federal court has the jurisdiction to do — the organization of a State Legislature. And your committee cannot refrain from expressing their astonishment that any judge of the United States should thus unwar- rantably have interfered with a State government, and know no language to express their condemnation of such proceeding." This report was signed by Senators Carpenter, Logan, Alcorn and Anthony. Separate reports were made by the three other members of the committee. Senntor Hill said : He assented in the main to the correctness of the statement of facts touching the recent election in Louisiana, and the history of the legal proceedings connected therewith as set forth in the report of the committee, and commended the just though severe criticism of a judi- cial tribunal for its improper intervention. Senator Trumbull, many years chairman of the judiciary committee of the Senate, said: " In no conceivable case could a United States court or judge have jurisdiction to issue orders, such as were promulgated by Judge Durell. As well might a United States District Judge make an order to seize the Federal Capitol and prevent all members from entering the build- ing, except such as he should declare duly elect ed^ And Senator Morton said : ''The conduct of Judge Durell, sitting in the Circuit Court of the United. States, cannot be justified or defended. He grossly exceeded his jurisdiction and assumed the exercise of powers to which he could lay no claim. ***** " The pretence that in a suit to perpetuate testimony the Court could go beyond the natural and reasonable jurisdiction to decide who constituted [ -'1 ] the legal Returning Board under the laws of Louisiana, and to enforce the rights of such as it might determine to be members of that board and t C- CONGRESS CI- 544 210 2